Citation Nr: 21028803 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-28 608 DATE: May 12, 2021 ORDER New and material evidence not having been received, service connection for bilateral hearing loss is not reopened. New and material evidence having been received, service connection for tinnitus is reopened. Service connection for tinnitus is granted. REMANDED Service connection for pulmonary fibrosis is remanded. FINDINGS OF FACT 1. The August 2014 rating decision denying the Veteran's service connection claim for bilateral hearing loss and tinnitus became final because he did not perfect an appeal, or submit new and material evidence within a year of the denial. 2. The evidence received since the August 2014 rating decision does not relate to any unestablished facts necessary to substantiate the claim for service connection for bilateral hearing loss. 3. The evidence regarding tinnitus that has been received since the August 2014 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 4. The weight of the evidence supports finding that the Veteran began experiencing ringing in his ears while in service and he has continued to experience it since separating from service. CONCLUSIONS OF LAW 1. The August 2014 rating decision that denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the August 2014 rating decision that is sufficient to reopen the Veteran's claim for service connection for tinnitus, but not for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1955 to January 1977. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at a January 2021 Board hearing. A complete transcript is of record. Reopening Claims Once a claim has been denied by VA and becomes final, new and material evidence must be received to reopen the claim. New evidence is defined as 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). When determining whether a previously denied claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection for bilateral hearing loss is not reopened. An August 2014 rating decision denied the Veteran's claim for service connection for bilateral hearing loss because a July 2014 VA audiological examination showed that there was no hearing loss for VA purposes. The VA examiner also provided a negative nexus opinion. The examiner found that his service treatment records (STRs) showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service and there was no record of complaint of treatment for hearing loss in the STRs. Further, the medical literature supported finding 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 Veteran did not appeal the decision or submit new evidence within one year of the denial. The August 2014 decision thereby became final. The Veteran filed to reopen his claim in September 2017. As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, unestablished facts necessary to substantiate the claim for bilateral hearing loss include evidence of a current disability and evidence of a medical nexus that links his bilateral hearing loss to his active service. The Veteran has not submitted any additional medical evidence that relates to the reasons his claim was previously denied. Since the August 2014 rating decision, VA has not received an additional medical records or opinions regarding bilateral hearing loss. The Veteran did provide testimony before the undersigned VLJ. However, while this evidence is new, as it was not of record at the time of the final August 2014 rating decision, it is not material. It is not material because the Veteran did not provide any testimony that would otherwise indicate that service connection for bilateral hearing loss is warranted. For example, the Veteran testified that he did not have hearing problems in the years following his separation from the military and reported that he first started having problems about 4-5 years earlier, about four decades after his separation from the military. Essentially, the Veteran has merely restated his prior assertions, which were denied by the August 2014 rating decision. More importantly, the Veteran has not offered the results of any audiometric testing which might show evidence of a hearing loss disability in either ear for VA purposes. Here, the Veteran was provided a VA examination to determine the etiology of his bilateral hearing loss in July 2014. The audiological examination showed no hearing loss for VA purposes and the VA examiner unfortunately provided a negative nexus opinion. Since that time, there has not been evidence received that addresses a previously unestablished fact necessary to substantiate the claims for service connection for bilateral hearing loss, notably a diagnosis and a medical nexus opinion linking the diagnosis to his active duty service. Thus, the Board must conclude that new and material evidence to reopen the service-connection claim for bilateral hearing loss has not been received, and the August 2014 rating decision remains final. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1100. Service connection for tinnitus is reopened. The August 2014 rating decision denied the Veteran's service connection claim for tinnitus because the evidence did not show that the onset was during his active duty service. The service connection claim for tinnitus is reopened because the Veteran provided credible testimony at his January 2021 Board hearing, competently and credibly testifying that he first noticed the ringing in his ears while in the military. His testimony is determined to be credible for the limited purposes of reopening the claims, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim is reopened. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, including tinnitus, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that his tinnitus onset during his active duty service and that he has experienced intermittent ringing ever since. The Board notes that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating a tinnitus claim, is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran credibly testified at his January 2021 Board hearing that he first noticed ringing in his hears while in the military. He did note that the ringing was not constant and was minor and for those reasons, he did not feel the need to seek medical assistance during his active duty service. The Board finds that the Veteran has credibly reported his exposure to loud noise during service, and that his tinnitus began in-service and has continued ever since. The Board is satisfied that this evidence is consistent with a finding of continuity of symptomatology. As such, the criteria for service connection for tinnitus have been met and the claim is granted. REASONS FOR REMAND Service connection for pulmonary fibrosis is remanded. The Veteran asserts that his pulmonary fibrosis is due to in-service exposure to Agent Orange, asbestos, and/or tetrachlorethylene (TCE). The Board notes that the Veteran's military personnel records show that he had service in Vietnam. As such, the Board concedes that the Veteran is presumed to have been exposed to herbicide agents during his active duty service. However, the Board also notes that pulmonary fibrosis is not on the presumptive list of diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). The Veteran provided credible testimony at the January 2021 Board hearing, where he testified that he was frequently exposed to TCE. His representative noted that TCE is a solvent used to remove grease from metal parts. The Veteran testified that when he was in the Air Force, the B-36 engines would leak oil, which would require washing. He reported that because he was a lower rank, he would have to go out and wash them. He described being on the ground and having to hose down the plane with TCE and then rinsing it off with water. He also testified that he has never smoked cigarettes. The Board notes that the Veteran has not stated when or where he was exposed to asbestos during his active duty service. The Veteran did credibly describe his exposure to TCEs. However, to date, the Agency of Original Jurisdiction (AOJ) has not addressed the Veteran's assertions pertaining to asbestos or TCE exposure, to include conducting the development necessary to verify asbestos or TCE exposure. On remand, the AOJ must conduct any necessary development related to the asbestos and TCE exposure claims. Here, the Veteran has not been afforded a VA examination regarding his service connection claim for pulmonary fibrosis. His private treatment records indicate that the Veteran has been diagnosed with idiopathic pulmonary fibrosis and the Veteran asserts that he was exposed to TCE, asbestos, and/or herbicide agents during his active duty service. As such, a remand for a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Conduct the appropriate development to verify any potential exposure to asbestos and/or TCE during the Veteran's service, to include seeking information as to the circumstances of the Veteran's asbestos exposure. The AOJ's attention is directed to the Veteran's hearing testimony, where he testified that he was exposed to TCE when he washed aircrafts. 2. Obtain a medical opinion addressing the etiology of the Veteran's pulmonary fibrosis. The examiner's attention is directed towards the Hearing Transcript, where the Veteran testified that he never smoked cigarettes. The examiner should answer the following questions: a) Is it at least as likely as not (50 percent or greater) that the Veteran's pulmonary fibrosis is the result of his exposure to asbestos? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran's pulmonary fibrosis is the result of his exposure to TCE or other chemicals during service? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran's pulmonary fibrosis is the result of his presumed exposure to herbicide agents? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.