Citation Nr: 21024640 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-08 184 DATE: April 23, 2021 ORDER As new and material evidence has been received, the applications to reopen the claims for service connection for tinnitus and bilateral hearing loss disability are granted. Service connection for tinnitus is granted based on new and material evidence. REMANDED The appeal for service connection for bilateral hearing loss disability, on its merits, is remanded. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) denied service connection for tinnitus and bilateral hearing loss disability in April 2014 and notified the Veteran of its decisions and of his right to appeal them within 1 year thereof at that time. The Veteran did not appeal, nor was new and material evidence received within one year of the notification of the decisions at the time. 2. Since the final April 2014 AOJ rating decisions denying service connection for tinnitus and bilateral hearing loss disability, evidence relating to unestablished facts necessary to substantiate the claims and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claims has been received. 3. The Veteran’s current tinnitus as likely as not had its onset in service. CONCLUSIONS OF LAW 1. The criteria to reopen the claims for service connection for tinnitus and bilateral hearing loss disability based on new and material evidence have been met. 38 U.S.C. § 5018; 38 C.F.R. § 20.1103. 2. The criteria for 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 March 1963 to December 1966, with service at Tan Son Nhut Air Force Base in Vietnam as an Air Policeman from April 1966 to December 1966. The Board thanks him for his service. These matters arose from a November 2015 rating decisions. The current claims were filed in September 2015 following an intent to file form filed in August 2015. Prior unappealed RO rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. Applicable 38 C.F.R. § 3.156 provides that 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. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. §§ 3.303(b), 3.307; see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Organic disease of the nervous system, including bilateral sensorineural hearing loss and tinnitus, is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). For VA compensation and pension purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The AOJ denied service connection for tinnitus and bilateral hearing loss disability in April 2014 and notified the Veteran of its decisions and of his right to appeal them within one year in April 2014. No appeal was filed, and no additional evidence was received within one year of the April 2014 notice. Accordingly, the AOJ decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The basis of the decision denying service connection for tinnitus was that the evidence did not show an event, disease, or injury in service; and that a VA medical opinion found no link between the Veteran's tinnitus and service. The basis of the decision denying service connection for left ear hearing loss disability was that the Veteran's current left ear hearing loss disability had not been linked to service. The basis of the decision denying service connection for right ear hearing loss disability was that there was no evidence that he currently had a right ear hearing loss disability; there also was no link to service. Since that decision, the Veteran has presented testimony in December 2020 that he had tinnitus in service. This report is considered to be new and material evidence for the tinnitus and hearing loss disability claims, as it is the type of evidence which was necessary but lacking at the time of the prior rating decisions. The Veteran’s December 2020 testimony that his right ear hearing loss is now worse than it was at the time it was examined in April 2014 is also new and material evidence for his right ear hearing loss disability claim, as right ear hearing loss disability was not previously shown and this is evidence tending to indicate that it is present now. Accordingly, the claims are reopened. On the merits, the claim for service connection for tinnitus should be granted. It was previously reported at the time of the VA examination in April 2014 that the Veteran reported the onset of his bilateral tinnitus about 4-5 years prior. It was also reported at that time that the Veteran had military noise exposure in the Air Force from March 1963 through December 1966, from gunfire, mortars, artillery, jet engines, and other combat noises in Vietnam, without the use of ear protection, and this is consistent with the Veteran's service personnel records which show that he was an Air Policeman at Tan Son Nhut Air Force Base from April to December 1966. The Veteran had also reported a post-service occupation as a Field Engineer with a large computer company for 37 years with the use of ear protection when required, which was rarely. He denied recreational noise. At the time of the Veteran's hearing before the undersigned Veterans Law Judge in December 2020, he reported that he first experienced tinnitus while he was in Vietnam and that he had told the VA examiner that he did not have tinnitus until 4 or 5 years ago because he did not go to a doctor for the issue for “about 40 years.” The Board finds that this puts the evidence in relative equipoise as to whether his current tinnitus was manifest in service. With reasonable doubt resolved in the Veteran's favor, service connection is granted for the Veteran's tinnitus as having its onset in service. REASONS FOR REMAND The appeal for service connection for bilateral hearing loss disability is remanded. The Veteran appeals for service connection for bilateral hearing loss disability. While it was indicated on VA examination in April 2014 that the Veteran did not then have a right ear hearing loss disability as required for a grant of service connection by 38 C.F.R. § 3.385, he indicated during his December 2020 hearing that he feels that his right ear hearing has become worse since 2014. No VA examination has been conducted since April 2014. Additionally, the April 2014 VA medical opinion on whether hearing loss is related to service relied on a 2006 Institute of Medicine (IOM) study which states that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. However, the clinician did not address any qualifying or contradictory statements in the cited IOM study. In McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court addressed the Board's dependence on a negative VA medical opinion that relied on the IOM report that contained unfavorable findings as well as unaddressed contradictory findings regarding delayed-onset hearing loss. The Court held that a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text. The text involved in the Court decision was the IOM report titled Noise and Military Service: Implications for Hearing Loss and Tinnitus. The IOM study found that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicated that [t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure, and that definitive studies to address this issue have not been performed. The Board, in deciding the claim, must explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Thus, if the VA examiner relies on the IOM report to support a conclusion, the examiner should state why such conclusion is applicable to the facts of this Veteran's case. Accordingly, the Veteran will be provided with another VA examination as indicated below. On remand, any additional relevant treatment records will be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain any additional/updated VA treatment records. 2. After completion of the action in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of the any current right and left ear hearing loss. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or higher degree of probability) that any current right or left ear hearing loss disability is related to service, including in consideration of the Veteran having in service hazardous noise exposure and tinnitus? It should be accepted that the Veteran had hazardous noise exposure and tinnitus in service, for the purposes of this opinion. A negative opinion cannot be based solely on a finding that his hearing was within normal limits on audiometric testing at separation from service. If the basis of a negative opinion is the absence of documented injury in the Veteran's service records, the clinician must explain whether (1) any injuries or noise exposure leading to the Veteran's current disorder would have been noted in the Veteran's service records; and (2) the Veteran would have sought treatment for such injuries or noise exposure. If the clinician cites to the 2006 Institute of Medicine Study on delayed onset hearing loss, the clinician must address any qualifying or contradictory statements relied upon in the medical text: the IOM study found that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." However, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." There is no legal requirement that the in-service event or injury must be the sole cause of the disorder claimed. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; and other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should   provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.