Citation Nr: 21031413 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-22 364 DATE: May 21, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the application the previously denied claim for service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In an April 2015 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal, and new and material evidence was not received within a year of this rating decision. 2. Evidence received concerning bilateral hearing loss and tinnitus since the April 2015 rating decision, is related to the basis for the prior denial and raises a reasonable possibility of substantiating the service connection claims for bilateral hearing loss and tinnitus. 3. The evidence is at least evenly balanced as to whether the Veteran currently has bilateral hearing loss related to military noise exposure. 4. The evidence is at least evenly balanced as to whether the Veteran currently has tinnitus loss related to military noise exposure. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1962 through January 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request to reopen a previously unappealed April 2015 rating decision, which denied his claim for service connection for bilateral hearing loss and tinnitus. The Veteran filed a Notice of Disagreement in July 2018. In June 2019, a Statement of the Case was issued continuing the RO's denial of the Veteran's request to readjudicate his previously denied April 2015 rating decision, finding new and material evidence had not been received. In July 2019, the Veteran perfected his appeal. In April 2021, the Veteran testified at a videoconference hearing, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. New and Relevant Evidence In April 2015, the RO denied the Veteran's claim of entitlement to service connection for, inter alia, bilateral hearing loss and tinnitus. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. The decision is, therefore, final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence received since the April 2015 denial includes an October 2016 VA examination report and May 2019 hearing testimony by the Veteran and his wife. As this evidence was not previously of record and relates to unestablished facts, as it provides evidence of a nexus between the Veteran's current bilateral hearing loss disability and tinnitus since service, the evidence is new and material and the criteria for reopening the claims for service connection for bilateral hearing loss and tinnitus have been met. An April 2015 rating decision denied the Veteran's October 2014 claim of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal the AOJ's determination and no new and material evidence was received within a year of the issuance of the rating decision. Thus, the rating decision became final and not subject to revision on the same factual basis. 38 U.S.C. § 7105 (c) (2002); 38. C.F.R. §§ 3.156(b), 20.302, 20.1103. The Veteran filed a subsequent claim in February 2018, requesting that his October 2014 claim of service connection for bilateral hearing loss and tinnitus be reopened. In a February 2018 rating decision, the claim was denied. The RO found that new and relevant evidence had not been submitted with regard to the Veteran's claim for service connection for bilateral hearing loss and tinnitus, therefore, readjudication was not warranted. Pertinent new evidence received since the April 2015 denial includes lay testimony from the Veteran, who testified at a hearing before the undersigned in April 2021, that his physician told him his hearing loss may have been caused by his exposure to hazardous noise levels while in service. The Veteran has provided credible statements with respect to his hearing loss disability and his symptoms related to tinnitus. He stated that he has suffers from hearing loss, which has continued and deteriorated since active duty. The Veteran is credible and competent to describe the continuity of symptomatology for his hearing loss as it existed from his time of service, and the progressive worsening of symptoms through the years. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). The additional evidence pertains to elements of the claim that were previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran has bilateral hearing loss and that his current disability may be associated with prior in-service acoustic trauma. The evidence is, therefore, new and material, and reopening of the claim for service connection for bilateral hearing loss and tinnitus is warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service is not in fact shown to be chronic or the diagnosis of chronicity may be legitimately questioned. The provisions of 38 C.F.R. § 3.303 (b) apply only to the specific chronic diseases listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a), which include sensorineural hearing loss and tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Entitlement to Service Connection for Bilateral Hearing Loss and Tinnitus. An April 2015 VA audiometric examination report shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 70 80 85 LEFT 20 25 65 75 80 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 80 percent in the left ear. The above results establish the Veteran has a bilateral hearing loss disability under VA regulations. 38 C.F.R. § 3.385. In addition, the Veteran is competent to identify tinnitus, as ringing in the ears is readily observable by layperson and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the Veteran has met the current disability requirement based on his audiometric readings on the VA contract examination and his statements indicating that he experiences tinnitus. The Veteran's DD Form 214 reflects that that his military occupation specialty (MOS) was air traffic controller. The Veteran's personal statements attest to loud noise exposure in service, including his July 2018 NOD, in which he stated that during his time as an air traffic controller, he was required to be around loud helicopter engines and he was not provided hearing protection. He also reported being exposed to hazardous noise levels during combat training when aircraft would maneuver over the flight line. The Veteran's statements in this regard are competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). The in-service injury element has, therefore, been met. The remaining issue is whether there is a nexus between the current bilateral hearing loss and tinnitus and the in-service noise exposure. At an April 2021 hearing, the Veteran testified that, during his time in service, he was exposed to hazardous noise levels working around helicopters and planes. He also stated that his physician told him his hearing loss may have been caused by his exposure to hazardous noise levels while in service. He described his hearing loss as continuing and getting progressively worse since leaving service. In his July 2019 substantive appeal (Form 9), the Veteran indicated that he began noticing a difference in his ability to hear after participating in intensive war games during service. He also stated that, during his post-service career working for the railroad and doing auto repair, although he was exposed to high levels of noise, he wore hearing protection. Evidence against the claim consists of an April 2015 VA examiner's opinion finding the Veteran's hearing loss was less likely than not due to or incurred in service. The examiner noted that the Veteran had a normal whisper test upon entrance but had a normal audiogram upon separation which showed normal hearing thresholds bilaterally, although he acknowledges that an audiometric examination conducted in February 1963 indicated mild hearing loss at 4,000 Hz in the Veteran's right ear. He indicated that there was no evidence the Veteran reported or sought treatment for symptoms of tinnitus or hearing loss during service. He also noted that, post-service, the Veteran worked doing auto repair and railroad work. In both professions, he was exposed to loud engine noise and did not wear hearing protection, which may have contributed to the Veteran's hearing loss. The Board finds the April 2015 VA examination report is of no probative value, as the examiner seemed to rely primarily on service treatment records (STR's) indicating lack of complaints or treatment for hearing loss or tinnitus in the Veteran's service treatment records (STRs) and after service. However, the absence of in-service evidence of hearing loss disability in service is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the examiner failed to evaluate the Veteran's lay statements as to the continuity of his symptoms since leaving service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). A medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, the opinion is afforded little, if any, probative weight. The Veteran testified stated that he suffers from hearing loss and tinnitus since his separation from service. The Veteran is credible and competent to describe the continuity of symptomatology for his hearing loss and tinnitus as it existed from his time of service, and the progressive worsening of symptoms through the years. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board is thus left with an inadequate medical opinion and competent and credible evidence of the onset of hearing loss and tinnitus in service and persisting since service. While the Board could remand the claims for another medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is sufficient to decide the claim, as it is at least evenly balanced as to whether the Veteran's bilateral hearing loss and tinnitus are related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.