Citation Nr: 21026129 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-62 824 DATE: April 29, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. New and material evidence has been received to reopen the claim of entitlement to service connection for a tinnitus disability. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In a December 2014 rating decision, the RO denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. The Veteran did not timely perfect an appeal of this determination, and no new and material evidence was received within one year of notice of this decision. 2. Evidence received since the December 2014 rating decision including the Veteran’s November 2016 statement that he initially experienced his current bilateral hearing loss disability while in service, is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 3. The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure. 4. The Veteran has a current tinnitus disability that is consistent with his in-service noise exposure. CONCLUSIONS OF LAW 1. New and material evidence has been received since the December 2014 denial, and the claim of entitlement to service connection for a bilateral hearing loss disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 2. New and material evidence has been received since the December 2014 denial, and the claim of entitlement to service connection for a tinnitus disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In a December 2019 decision, the Board denied the Veteran’s claims to reopen claims of service connection for bilateral hearing loss and tinnitus and remanded a claim of entitlement to service connection for prostate cancer for additional development. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2020 Joint Motion for Remand, the Court vacated the December 2019 Board decision as it pertained to the bilateral hearing loss and tinnitus claims and remanded these claims for further appellate review. A February 2020 rating decision subsequently granted service connection for prostate cancer. As a result, the issue of entitlement to service connection for prostate cancer is no longer before the Board. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as sensorineural hearing loss is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Factual Background and Analysis The Veteran contends that his current bilateral hearing loss and tinnitus disabilities were incurred in service. The Veteran’s service treatment records are negative for complaints of, treatment for, or findings of bilateral hearing loss or tinnitus. The Veteran’s October 1966 enlistment examination, a September 1967 annual examination and the February 1970 separation examination did not provide the Veteran with an audiological evaluation showing puretone thresholds. Rather, the Veteran was provided with whisper tests that demonstrated 15/15 for both the right and left ears. In a May 2014 statement, a fellow soldier noted that during the Veteran’s service, he was in noisy engineering areas as he undertook engine compartment inspections. The Veteran also had noise exposure when supporting ship refueling efforts as well as noise exposure from gunnery practice. The Veteran underwent a VA examination in November 2014. The November 2014 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 20 60 65 LEFT 45 20 20 45 65 The examiner opined that it was less likely than not that the Veteran’s current bilateral hearing loss was caused by or a result of an event in military service. The examiner indicated that “there was no documentation of hearing loss at a time near that which the Veteran was in military service.” The examiner noted that the Veteran reported in-service noise exposure from his ship’s engine room, guns, and loading equipment/machinery. His civilian occupation was primarily administrative. The Veteran also reported a gradual decline of his hearing over many years as well as recreational noise exposure from firearms and a chainsaw. The examiner found that it was more likely than not that the Veteran’s hearing loss had been incurred in the years following his separation from service. The examiner found that it was at least as likely as not that the Veteran’s tinnitus was a result of his bilateral hearing loss. The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes and a diagnosis of tinnitus. Accordingly, the first element of evidence of a current disability is accordingly met. Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss and tinnitus disabilities are associated with the Veteran’s active duty. In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of hearing loss or tinnitus. However, when considering the circumstances of the Veteran’s service, he was undoubtedly exposed to some noise in service and his in-service noise exposure has been conceded. Notably, the Veteran has also described his specific in-service noise exposure while also noting that he had noticed ringing in his ears since his time spent in the military. The Board acknowledges that the November 2014 VA examiner opined that it was less likely than not that the Veteran had bilateral hearing loss as a result of his in-service noise exposure. However, the negative nexus opinion that was provided by the November 2014 VA examiner appears to be based in part on the absence of documented hearing loss disability in the Veteran’s service treatment records as the examiner noted that “there was no documentation of hearing loss at a time near that which the Veteran was in military service.” The absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As a result, when affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for bilateral hearing loss. Regarding the Veteran’s tinnitus disability, as noted above, the Veteran reported that he experienced tinnitus since his service. Further, the November 2014 VA examiner specifically indicated that the Veteran’s tinnitus was as likely as not related to his now service-connected bilateral hearing loss. Accordingly, when affording the Veteran the benefit of the doubt, the Board finds that service connection is also warranted for tinnitus. (Continued on the next page)   Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claims, and a remand would only serve to unnecessarily delay final adjudication of the claims. In sum, for the reasons and bases discussed above, all doubt is resolved in favor of the Veteran, and service connection for a bilateral hearing loss disability and a tinnitus disability, is warranted. See 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.