Citation Nr: 21028706 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-21 501 DATE: May 11, 2021 ORDER The request to reopen the claim for service connection for a bilateral hearing loss is granted. The request to reopen the claim for service connection for tinnitus is granted. Service connection bilateral hearing loss is denied. Service connection tinnitus is denied. FINDINGS OF FACT 1. An unappealed August 2013 rating decision denied service connection for bilateral tinnitus and bilateral hearing loss. 2. The additional evidence received since August 2013 raises a reasonable possibility of substantiating the previously denied claims and they are reopened. 3. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease, and sensorineural hearing loss was not manifest within one year of separation from service. 4. The preponderance of the evidence is against finding that tinnitus began during active service or is otherwise related to an in-service injury or disease, and tinnitus was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria to reopen the claims for service connection for bilateral hearing loss and tinnitus are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from October 1960 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans' Law Judge. A copy of the transcript has been made a part of the record. In December 2019, the Board declined to reopen the claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court vacated the December 2019 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). New and Material Evidence To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A final August 2013 rating decision denied service connection for bilateral hearing loss and tinnitus, as there was no link between the conditions and the Veteran's active duty service. Subsequently, the Veteran sought to reopen the claims. As discussed by the parties in the Joint Motion, evidence added to the record since the August 2013 final rating decision includes hearing testimony from the Veteran. In October 2019 the Veteran testified that he has bilateral hearing loss and tinnitus since he left the service. The credibility of this evidence is presumed for the limited purpose of reopening the claims. As such, this evidence is sufficient to reopen the Veteran's claims for service connection bilateral hearing loss and tinnitus. Accordingly, the Board finds that new and material evidence has been received regarding the Veteran's claims for service connection for bilateral hearing loss and tinnitus. The request to reopen these claims is granted. Annoni v. Brown, 5 Vet. App. 463 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including tinnitus and sensorineural hearing loss will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Bilateral hearing loss The Veteran's claim for bilateral hearing loss is denied because there is no nexus between the disability and the injury in service. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. As for a current disability, a July 2013 VA audiological examiner found a current diagnosis of hearing loss, as defined by VA at 38 C.F.R. § 3.385. Therefore, the first element is met. Despite a lack of audiometric findings during service, including at service discharge, the Board finds that the Veteran was exposed to acoustic trauma during service. The Board acknowledges that individuals can be, and this Veteran was likely, exposed to loud noises on a flight line. Therefore, the second element is met. Although elements one and two of for having a service-connected disability are met, the claim fails on the third element. On VA examination in July 2013, the examiner found that the Veteran's current hearing loss was not at least as likely as not caused by military service. The opinion was based on normal findings on both the Veteran's entrance and separation examinations, and the lack of a significant threshold shift in hearing acuity as measured by in-service audiograms. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current hearing loss is related to the Veteran's active military service, or that a chronic disability was incurred in service. The Veteran was exposed to acoustic trauma in service. However, the evidence does not show that hearing loss was then-present, or that the disability has been continuous since service. At the October 2019 hearing, the Veteran stated his hearing loss has been constant since getting out of the service. However, records from January 2016 and December 2018, for example, document that the Veteran denied having symptoms of hearing loss. Hearing loss was not established until July 2013. To the extent the Veteran has reported persistent symptoms since discharge, the Board finds these reports are not credible given the inconsistencies of his accounts. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Further, the fact that he sought treatment for other conditions in and following service, but not hearing loss, weighs against the credibility of any statement that the disorder existed in and persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The medical opinion evidence is also persuasive. The July 2013 VA examiner's opinion was based on an in-person examination and an examination of the claims file, including service treatment records and post-service treatment records. The examiner accepted that the Veteran was exposed to hazardous noise in service and provided a rationale for the conclusion reached. The only other evidence to the contrary of the July 2013 VA examiner's opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as sensorineural hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Tinnitus The Board finds that the first two elements for direct service connection have been satisfied. The Veteran has a current disability of tinnitus, a disability capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He has competently and credibly reported current tinnitus symptoms. See Hearing Testimony, VA Medical Records. Also, the Veteran's exposure to excessive noise in service is consistent with working on the flight line. Despite meeting elements one and two of for having a service-connected disability, the claim fails on the third element. On VA examination in July 2013, the examiner found that the Veteran's tinnitus was less likely than not caused by military noise exposure. The examiner's conclusion was based on a lack of pertinent documentation in the service treatment records, and the fact that the Veteran reported an onset of tinnitus only one year prior, which was approximately 48 years after discharge. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The Veteran was exposed to acoustic trauma in service. However, the evidence does not show that tinnitus was then-present, or that the disability has been continuous since service. At the October 2019 hearing, the Veteran stated that his tinnitus had existed since his service, but that the July 2013 VA examiner misinterpreted his statement in finding it had existed for only 2 months. However, in records dated from June 2013, May 2015, January 2017, and December 2018, for example, the Veteran denied having tinnitus. To the extent the Veteran has reported persistent symptoms since discharge, the Board finds these reports are not credible given the inconsistencies of his accounts. See Madden, 125 F.3d at 1481. Further, the fact that he sought treatment for other conditions in and following service, but not tinnitus, weighs against the credibility of any statement that the disorder existed in and persisted since discharge. See AZ, 731 F.3d at 1303. Moreover, the Veteran's statements during the hearing weigh against him. The Veteran stated he thought everyone had ringing in their ears. The reasonable understanding of that statement is that he thought everyone had it because he did not notice a difference in ringing before or after service. But that does not make sense because the Veteran stated the ringing in his ears has been constant since discharge, but the ringing in his ear drives him up the wall. It is difficult to find it credible that the Veteran always heard ringing that drove him up the wall, but did not report it for so long, and simultaneously believed everyone else had equally annoying ringing that went undiscussed. Moreover, the statement that the ringing has been constant is contradicted by the aforementioned medical records. The medical opinion evidence is also persuasive. The July 2013 VA examiner's opinion was based on an in-person examination and an examination of the claims file, including service treatment records and post-service treatment records. The examiner accepted that the Veteran was exposed to hazardous noise in service and provided a rationale for the conclusion reached. To the extent the examiner noted that tinnitus is a symptom of hearing loss because service connection has not been awarded for hearing loss, an award of secondary service connection is not possible. The only other evidence to the contrary of the VA examiner's opinion is the lay evidence. However, as noted above, the inconsistent nature of the Veteran's reports regarding the onset and presence of tinnitus renders his reports unreliable for purposes of determining the etiology of the condition. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chalker, Phillip 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.