Citation Nr: 21024564 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-09 094 DATE: April 23, 2021 ORDER New and material evidence was received, and the claim of entitlement to service connection for bilateral sensorineural hearing loss is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a February 2014 rating decision, the Regional Office (RO) denied service connection for bilateral sensorineural hearing loss. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. Additional evidence has been received since the February 2014 rating decision that relates to unestablished facts necessary to substantiate the claim for service connection for bilateral sensorineural hearing loss. 3. The Veteran has credibly reported ringing in his ears, which has been described by a VA examiner as tinnitus, since his exposure to harmful noise in service. CONCLUSIONS OF LAW 1. The February 2014 rating decision that denied service connection for bilateral sensorineural hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for bilateral sensorineural hearing loss has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to September 1967. This claim arose to the Board of Veterans’ Appeals (Board) from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 Board hearing. A transcript of that hearing is associated with the record. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral sensorineural hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. Implicit in this claim is the contention that new and material evidence has been received which is sufficient to reopen a previously disallowed claim for this benefit. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final denial is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran filed a claim for service connection for bilateral hearing loss, and was denied in a February 2014 rating decision on grounds that his “hearing loss has not been linked to service.” The Veteran was notified but did not appeal the decision. Accordingly, the February 2014 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Subsequently, the Veteran filed the instant application to reopen his claim. As part and parcel of that application, the Veteran has submitted positive evidence from private medical providers, including an April 2017 letter in which a physician stated that he believed the Veteran’s hearing loss “was most likely due to his active military service,” particularly his exposure to weapons fire and other loud noises while serving as an Ammunition Specialist. This evidence clearly speaks to a previously unestablished element of the Veteran’s claim (i.e., a nexus between the claimed disabilities and the Veteran’s service). Accordingly, the claim will be reopened. 2. Entitlement to service connection for tinnitus The Veteran contends he is entitled to service connection for tinnitus. For the following reasons, the Board finds service connection warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The Veteran contends he has tinnitus, or ringing in the ears, which developed during service. The record is consistent with exposure to harmful noises in serviced; his testimony and the evidence of record demonstrates he served as an Ammunition Storage Specialist. As such, the Board accepts his contentions of harmful noise exposure in service. See 38 U.S.C. § 1154(a). The record further shows the Veteran has been diagnosed with tinnitus. The Board notes that at the Veteran’s May 2016 VA Compensation and Pension (C&P) examination, the examiner opined that the Veteran had complained of tinnitus for “many years” but nonetheless attributed his tinnitus to post-service harmful noise exposure. Notwithstanding, the Veteran has since alleged, including in sworn testimony at his Board hearing, that he first experienced ringing in his ears during his period of active service. Moreover, the Veteran submitted an April 2017 letter from a private physician indicating it was the physician’s opinion that the Veteran’s tinnitus was “most likely due to his active military service.” When liberally construing the Veteran’s statements concerning continuity of symptomatology since his discharge from service, the Board finds the evidence is in equipoise with regard to whether his diagnosed tinnitus originated in service. The Veteran’s reports of harmful noise exposure are consistent with the circumstances of his service, and VA examination findings (as well as private treatment records) confirm that the ringing in the ears observed by the Veteran was tinnitus. As the Veteran has asserted, with support from his physician, that the ringing started during service, his credible assertions of ringing in his ears during and after active service establish chronicity of the condition which was later diagnosed as tinnitus. While there is some negative evidence in the form of a negative opinion noted in the May 2016 C&P examination report, the Veteran is competent to establish all the elements of his service connection claim. As such, a nexus to service is shown. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, by resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus will be granted. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends his bilateral hearing loss is related to service. In support of his claim, he submitted an April 2017 letter from a private physician noting that the Veteran had a history of noise exposure in the military and opining that the Veteran’s current hearing loss was likely related to such noise exposure. No substantive rationale was provided, however. The Veteran also submitted an August 2017 Disability Benefits Questionnaire (DBQ), which indicated the Veteran suffered from vestibular problems and needed additional work-up, to include an MRI of the inner ear and an evaluation by an ear, nose, and throat specialist. In May 2016, the Veteran underwent a VA C&P examination in which he reported experiencing excessive noise in service and stated he was not provided hearing protection. However, the examiner opined it was not at least as likely as not that the Veteran’s current hearing loss was related to service. By way of rationale, the examiner explained the Veteran’s service treatment records contained no hearing evaluation; the Veteran reported post-service occupational noise exposure as an electrician; and the record was silent as to audiological treatment for hearing loss until 2006, many decades after his separation from service. The Board notes that the May 2016 C&P opinion, while detailed, did not address evidence subsequently submitted by the Veteran, including the August 2017 DBQ noting possible vestibular disorder. Moreover, the C&P report naturally did not consider the Veteran’s testimony concerning the nature of his noise exposure, lack of ear protection in service, and subsequent symptoms. For these reasons, a remand is warranted for an updated VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Schedule the Veteran for an examination, by an examiner who has not previously examined the Veteran, to determine the nature and etiology of the Veteran’s bilateral hearing loss. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a bilateral hearing loss diagnosis is met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss disability was incurred in or otherwise related to in-service noise exposure. * Notably, the absence of documented evidence of hearing loss during service should not serve as the sole basis for a negative opinion. * In providing the above opinion, the examiner must specifically discuss the relevant lay statements regarding noise exposure in service (including the Veteran’s testimony at his March 2021 Board hearing), to include the Veteran’s reports that he had inadequate ear protection in service. * The examiner must also discuss the April 2017 positive private nexus opinion provided by the Veteran’s physician, as well as the August 2017 DBQ noting a possible vestibular disorder and the possible need for further work-up. (c) If it is determined there is another likely etiology for the Veteran’s bilateral hearing loss, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.