Citation Nr: 21028147 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-60 202 DATE: May 10, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for tinnitus is granted. New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A May 2012 rating decision denied service connection for tinnitus. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 2. Evidence received since the May 2012 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. 3. A May 2012 rating decision denied service connection for bilateral hearing loss. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 4. Evidence received since the May 2012 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. 5. The Veteran's tinnitus is etiologically related to service. 6. The Veteran's bilateral hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for tinnitus. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) from a May 2017 rating decision which reopened claims of service connection for tinnitus and bilateral hearing loss, but continued to deny both claims on the merits. In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Reopening of Claims The Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of service connection for tinnitus and bilateral hearing loss before addressing the claim on the merits. 38 U.S.C. § 7104; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 19.20, 19.52. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, the agency of jurisdiction (AOJ) shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been submitted) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus A May 2012 rating decision denied service connection for tinnitus because the VA examiner linked this disability with the Veteran's bilateral hearing loss, which was found not to be service connected. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In March 2017, the Veteran attempted to reopen his claim. Since the May 2012 rating decision, evidence added to the claims file includes a May 2017 VA examination and hearing testimony of the Veteran's knowledge of noise exposure due to his education and job experience as a safety engineer. This evidence pertains to whether the Veteran's tinnitus is related to service and satisfies the low threshold of raising a reasonable possibility of substantiating the claim. Therefore, the Board finds that new and material evidence has been received since the May 2012 rating decision and reopening the claim of service connection for tinnitus is warranted. The Veteran's petition is granted only to this extent. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss A May 2012 rating decision denied service connection for bilateral hearing loss because there was no medical link between the Veteran's hearing loss and service. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In March 2017, the Veteran attempted to reopen his claim. Since the May 2012 rating decision, evidence added to the claims file includes a May 2017 VA examination and hearing testimony of the Veteran's knowledge of noise exposure due to his education and job experience as a safety engineer. This evidence pertains to whether the Veteran's bilateral hearing loss is related to service and satisfies the low threshold of raising a reasonable possibility of substantiating the claim. Therefore, the Board finds that new and material evidence has been received since the May 2012 rating decision and reopening the claim of service connection for bilateral hearing loss is warranted. The Veteran's petition is granted only to this extent. Entitlement to service connection for tinnitus is granted Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An April 1964 examination showed no abnormalities or defects with the ears. The Veteran's DD 214 and military records identified his military occupational specialty as special identification techniques operator. At a May 2012 VA examination, the Veteran reported longstanding tinnitus. The VA examiner opined that the Veteran's tinnitus was at least as likely as not a symptom associated with hearing loss. At a May 2017 VA examination, the Veteran reported constant, longstanding tinnitus with no specific incident. The Veteran reported occasional and temporary tinnitus during service following noise exposure. The VA examiner opined that the Veteran's tinnitus likely had the same etiology as his hearing loss and was less likely than not related to military noise exposure. In written pleadings and at the April 2021 hearing, the Veteran reported experiencing tinnitus during service and noticing the ringing off and on over the years, with constant ringing for the past 20 years. During service, the Veteran wore headsets 10 to 12 hours a day and, while he was generally listening to weak signals, there were blasts of loud noises. The Veteran further reported that, because this was a top secret job, music was blaring in the room to prevent anyone from listening to radio transmissions. He also reported noise exposure at a shooting range in Japan. The Veteran reported education and job experience in noise exposure as a safety engineer. As part of his education and first job, he performed hearing tests on others and that his classmates performed tests on each other. As a preliminary matter, the Board notes that the Veteran was in sound condition at the entrance of service based on the April 1964 examination that documented no abnormalities or defects with the ears. The Board finds that service connection for tinnitus is warranted. A current disability is established based on the Veteran's competent reports of experiencing tinnitus during the pendency of this appeal. An in-service incurrence is established based on the Veteran's DD 214, military records, and competent and credible testimony regarding noise exposure during service. A nexus to service is established based on the Veteran's competent and credible reports of experiencing tinnitus during service and continuously since service. While the Veteran is not an audiologist, he does possess specialized education and job experience with noise exposure that lends additional credibility to his testimony. The Board assigns limited probative weight to the 2012 and 2017 VA examiner's opinions. The 2012 examiner provided no nexus opinion and simply noted that the Veteran's tinnitus was related to his hearing loss. While the 2017 examiner also opined that the Veteran's tinnitus likely had the same etiology as his hearing loss, the examiner provided a conclusory nexus opinion that did not consider the Veteran's competent and credible lay statements. Because the preponderance of the evidence supports the Veteran's claim for service connection, the claim for service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. For purposes of a claim of service connection for hearing loss, a veteran's hearing loss will be considered a current disability only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies 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 Board notes that service audiograms were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units during different periods. Prior to January 1, 1967, audiometric results must be converted from ASA to ISO-ANSI units. Between January 1, 1967, and December 31, 1970, and where it is unclear if the results were recorded using ASA or ISO-ANSI units, the Board will consider the audiometric results under both standards, relying on the units most favorable to the Veteran's appeal. Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz (Hz); 10 decibels at 1000, 2000, and 3000 Hz; and 5 decibels at 4000 Hz. Here, the audiometric results of the April 1964 examination must be converted from ASA units to ISO-ANSI units as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 0 5 LEFT 20 5 15 10 15 Here, the audiometric results of the May 1966 examination must be converted from ASA units to ISO-ANSI units as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 0 -5 LEFT 15 10 10 0 10 (Continued on the next page.) Here, as the May 1968 examination was conducted between January 1, 1967, to December 31, 1970, and the examination is unclear about what standard was used, the Board will consider the results under both standards. As such, the audiometric results are as follows, with the conversion in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) The Veteran's DD 214 and military records identified his military occupational specialty as special identification techniques operator. A May 2012 VA examination showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 60 55 65 LEFT 20 30 60 55 65 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 88 percent in the left ear. The VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to service because audiograms at separation showed normal hearing and the Veteran's hearing loss had been incurred in the years following service. The VA examiner also opined that the Veteran's tinnitus was at least as likely as not a symptom associated with hearing loss. A May 2017 VA examination showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 70 65 70 LEFT 20 40 65 60 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. The VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to service because audiograms at enlistment and separation were normal and there were no significant threshold shifts. The examiner stated that the Institute of Medicine found that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner also opined that the Veteran's tinnitus likely had the same etiology as his hearing loss. In written pleadings and at the April 2021 hearing, the Veteran reported that he never really noticed hearing loss during service and was unsure when he first noticed it because it was a slow, subtle thing. During service, the Veteran wore headsets 10 to 12 hours a day and, while he was generally listening to weak signals, there were blasts of loud noises. The Veteran further reported that, because this was a top secret job, music was blaring in the room to prevent anyone from listening to radio transmissions. He also reported noise exposure at a shooting range in Japan. The Veteran reported education and job experience in noise exposure as a safety engineer. As part of his education and first job, he performed hearing tests on others and that his classmates performed tests on each other. He reported that a hearing test in 1977 detected high frequency hearing loss, but records were not generated to document these results. Based on his education, he knew that he had very little noise exposure since service and that he wore hearing protection if he did have noise exposure. As a preliminary matter, the Board notes that the Veteran was in sound condition at the entrance of service based on the April 1964 audiogram that documented no hearing loss disability. The Board finds that service connection for bilateral hearing loss is warranted. A current disability is established based on the May 2017 audiometric results showing one auditory threshold of 40 decibels or greater. An in-service incurrence is established based on the Veteran's DD 214, military records, and competent and credible testimony regarding noise exposure during service. The Board further finds that the competent and credible evidence shows a nexus between the Veteran's current bilateral hearing loss disability and his in-service noise exposure. The Board assigns probative weight to the 2012 and 2017 VA examiner's opinions that the Veteran's tinnitus was at least as likely as not a symptom associated with hearing loss and likely had the same etiology as his hearing loss. As stated in the prior section, the Board found that the Veteran's tinnitus was related to service. Because the Veteran's tinnitus was related to service and likely had the same etiology as his hearing loss, it therefore follows that the Veteran's hearing loss was also related to service. This conclusion is consistent with the Veteran's testimony that he noted high frequency hearing loss in 1977. While the Veteran is not an audiologist, he does possess specialized education and job experience with audiograms and noise exposure that lends additional credibility to his testimony. The Board assigns limited probative weight to the 2012 and 2017 VA examiner's opinions that hearing loss was less likely than not related to service. The Board notes that both examiners relied too heavily on the normal audiograms during service and did not consider the Veteran's lay statements, to include his testimony of noticing high frequency hearing loss in 1977. The Board further notes that the 2017 examiner never quantified the Institute of Medicine's statement regarding the delay "long after noise exposure," especially in light of the Veteran's testimony of noticing high frequency hearing loss less than 10 years after separation of service. Similarly, while the 2017 examiner cited an "insufficient basis" to conclude that hearing loss will develop long after noise exposure, the examiner did not conclusively rule out this possibility. Because the preponderance of the evidence supports the Veteran's claim for service connection, the claim of service connection for bilateral hearing loss is granted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.