Citation Nr: 21029484 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-53 334 DATE: May 13, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In a final February 2015 rating decision, the RO declined to reopen the Veteran's claims for service connection for bilateral hearing loss and tinnitus. 2. The evidence received since the February 2015 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hearing loss and tinnitus. 3. Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss is related to service. 4. Resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus is secondary to bilateral hearing loss. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty July 1974 to November 1975. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2021. New and Material Evidence Claims 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In unappealed September 2012 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus because there was no evidence to show the claimed disorders were incurred in or caused by service, nor were they shown to have manifested within one year from service. Thereafter, a February 2015 rating decision declined to reopen the claims for entitlement to service connection for bilateral hearing loss and tinnitus because new and material evidence had not been submitted to reopen the claims. The Veteran was notified of the rating decision, but did not appeal it. As such, the February 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decision, the record included the service records; an August 2012 VA examination report which provided a negative nexus opinion between the Veteran's bilateral hearing loss and tinnitus, and service; VA treatment records that documented hearing loss in 2003, and; statements from the Veteran asserting that he developed bilateral hearing loss and tinnitus due to acoustic trauma in service. The evidence received since the February 2015 decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. The evidence contains a in a May 2019 medical statement from a private audiologist who opined that the Veteran's right ear hearing loss and tinnitus were caused by, or related to service. Also included in the claims file is an evaluation report by a VA ear nose or throat (ENT)/otolaryngologist who opined that the Veteran's sensorineural component of his hearing loss was likely due to loud noise exposures both in the army and in his occupation, and that tinnitus was likely associated with hearing loss. In March 2021, the Veteran provided testimony regarding the in-service onset of his claimed tinnitus and hearing problems following discharge from service. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus, 3 Vet. App. at 513. Accordingly, the claims are reopened. Service Connection 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that he developed bilateral hearing loss and tinnitus due to acoustic trauma incurred in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including sensorineural hearing loss, organic disease of the nervous system such as tinnitus, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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, or 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. See 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. In this case, the current medical evidence, including the VA examination reports in August 2012 and July 2017, show that the Veteran has bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. With regards to tinnitus, the Veteran reported on VA examination that he had tinnitus and the audiologist appeared to have found the Veteran's account of current tinnitus credible. Moreover, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the first criterion for establishing service connection for hearing loss and tinnitus, current disabilities, has been met. With respect to an in-service injury or disease, the Veteran is competent to describe his in-service noise exposure due to artillery noise during service, as such is that which he may discern from his senses. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Significantly, the Veteran's DD Form 214 reflects that the Veteran's military occupational specialty (MOS) was listed as a light weapons infantryman. He was awarded the sharpshooter badge. The Board notes that the Veteran's reports of in-service noise exposure are credible because they are consistent with the circumstances of his service and the personnel records. Accordingly, the Board finds that the element of an in-service injury, consisting of acoustic trauma, has been met. On enlistment examination in July 1974, an audiogram recorded the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 20, 10, 10, 10, and 15, in the right ear; and 20, 15, 5, 10, and 5, in the left ear. On discharge from service in October 1975, the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 15, 15, 5, 5, and 5, in the right ear; and 20, 15, 10, 15, and 5, in the left ear. The Veteran denied a history of hearing loss, as well as a history of ear, nose and throat trouble. A separation audiogram graph appears to be inconsistent with the contemporaneous separation examination readings. For instance, the separation audiogram graph appears to show hearing thresholds of 30 decibels at the 1000, 3000 and 6000 Hertz range in the left ear, and at the 500 and 6000 Hertz range in the right ear. After service, treatment records since 2003 noted bilateral hearing loss. He reported l9 months, in the Army where he served in the infantry and was exposed to weapons noise. He did not wear hearing protection. The Veteran also noted occupational noise exposure from sheet metal work for 15 years. Hearing protection was worn intermittently in that environment. The Veteran denied tinnitus. On VA examination in August 2012, Veteran reported onset of tinnitus in 1997. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 30, 25, 30, and 40, in the right ear; and 25, 30, 30, and 45, in the left ear. Speech discrimination was 100 percent, bilaterally. The examiner diagnosed bilateral mixed hearing loss and tinnitus, and opined that the conditions were less likely than not caused by or the result of service. The examiner noted no evidence of hearing loss during service. The examiner noted that the current hearing levels, obtained 37 years post-military discharge, was indicative of natural progression. The examiner seemed to attribute the Veteran's hearing loss to a bilateral eustachian tube dysfunction. The examiner opined that tinnitus was at least as likely as not a symptom associated with the hearing loss. On VA examination in July 2017, the Veteran reported occasional difficulty understanding others, particularly in situations where there was background noise. The examiner diagnosed sensorineural hearing loss, and opined that the condition was less likely than not caused by or the result of service because the Veteran did not experience significant threshold shift (STS) in in either ear during service. Although his MOS of infantryman, which had high probability of hazardous noise exposure, and he earned commendation of sharpshooter M16, there was nothing in the evidence to support hearing loss due to military noise exposure. Significantly, the Veteran's post service employment as sheet metal worker with limited use of hearing protection devices was positive for hazardous noise exposure. Concerning tinnitus, the Veteran reported onset of intermittent tinnitus in the 1980s. The examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure, or a symptom associated with the Veterans hearing loss because the Veteran's description of tinnitus was inconsistent with noise induced tinnitus patterns. Rather, his tinnitus was suggestive of normal changes in vascular flow, which was prevalent among the general population. In November 2018, the Veteran was evaluated by a VA ENT/otolaryngologist. At that time, he reported onset of tinnitus and hearing loss sometime in the 70s after he was discharged from service. The Veteran indicated that as part of his military duties, he fired weapons such as M16s and worked on Amtrak vehicles. He sometimes wore ear plugs. He also noted occupational noise exposure from sheet metal work for approximately 15 years with intermittent use of hearing protection. The VA ENT/otolaryngologist noted that the Veteran experienced multiple ENT issues, including a history of mixed hearing loss, tinnitus, eustachian tube dysfunction and allergic rhinitis. The VA ENT/otolaryngologist opined that the Veteran's sensorineural component of his hearing loss, which was worse at the high frequencies, was likely due to loud noise exposure during service and in his occupation, thus service related. The VA ENT/otolaryngologist opined that the Veteran's tinnitus was likely exacerbated by hearing loss. In a May 2019 medical evaluation report, a private audiologist reviewed the evidence of record and found that the service treatment records did in fact document acoustic trauma, noting that hearing thresholds documented at discharge were inconsistent with the actual data found on examination as reflected in the audiogram graph. The private audiologist indicated that audiogram graph results shown on separation from service, showed right ear hearing loss with a 30 decibel hearing threshold at 6000 Hertz. Accordingly, the private audiologist opined that the Veteran's right ear hearing loss and tinnitus were caused by or related to service. While hearing loss under 38 C.F.R. § 3.385, was not demonstrated during service, as noted, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. Here, the evidence shows a current diagnosis of bilateral hearing loss for VA purposes and military acoustic trauma has been conceded. Additionally, while the Veteran's service treatment records do not document hearing loss, the puretone thresholds readings marked on separation from service appear to be inconsistent with the puretone thresholds readings shown on the contemporaneous audiogram graph report. The separation audiogram supports a finding of significant upward threshold shifts in hearing acuity across several frequencies, bilaterally, representing a decrease in hearing between enlistment and separation examinations. A veteran is competent to describe observable symptoms such as problems hearing. See Jandreau v. Nicholson, 492 F.3d at 1376-77; Charles, 16 Vet. App. 370, 374-75 (2002). The Veteran testified that he initially noted hearing problems during service after firing artillery and that it intensified and became noticeable shortly thereafter. The Board is cognizant that, the VA examiners provided evidence against the claim. The VA examiners appear to have relied on the lack of a complaint or finding of hearing loss during service; however, the lack of treatment in service isn't necessarily dispositive of the issue, particularly where, as here, the Veteran has credibly reported that his impaired hearing had its onset in service. In this case, the lack of treatment during service doesn't automatically rule out whether the Veteran's hearing loss initially manifested in service given his credible statements. As there is a current diagnosis of bilateral hearing loss, statements from the Veteran regarding onset of hearing problems in service associated with in-service noise exposure, in-service acoustic trauma has been conceded, and as there is competent medical evidence for and against the claim, the Board finds that the competent and credible assertions from the Veteran provide a nexus linking his current bilateral hearing loss to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current bilateral hearing loss and active service. Therefore, service connection for bilateral hearing loss is warranted. Concerning tinnitus, as noted, the service treatment records contain no complaints or findings consistent with tinnitus and throughout the appeal the Veteran has provided inconsistent statements regarding the onset and presence of tinnitus. However, the VA examiner in August 2012, opined that tinnitus was at least as likely as not a symptom associated with the hearing loss. Consistent with the examiner's finding, in November 2018, the VA ENT/otolaryngologist opined that the Veteran's tinnitus was likely exacerbated by hearing loss. These opinions, then, in turn provide medical evidence indicating the Veteran's current tinnitus is proximately due to or the result of his hearing loss. Accordingly, resolving all reasonable doubt in his favor, service connection is additionally warranted for his tinnitus as secondary to the now service-connected hearing loss. See 38 C.F.R. § 3.310. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral hearing loss and tinnitus. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. (Signature on the next page) John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.