Citation Nr: 21039895 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-30 282 DATE: July 1, 2021 ORDER The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. The previously denied claim of 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. The claim of entitlement to service connection for bilateral hearing loss was previously denied in a rating decision that became final. Subsequently, service department records were newly associated with the file. 2. The claim of entitlement to service connection for tinnitus was denied in a rating decision that became final. Subsequently, service department records were newly associated with the file. 3. The Veteran's bilateral hearing loss is related to his active service. 4. The Veteran's tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from October 1968 through October 1970. His military personnel record reflects that he engaged in campaigns in the Republic of Vietnam and received the Vietnam Cross of Gallantry w/palm and the Army Commendation Medal with "V" device for heroism during military operations against a hostile force. The issues on appeal come to the Board of Veterans' Appeals (Board) from an August 2015 Rating Decision, which determined there was no new and material evidence to reopen the previously denied claims. The Veteran initially requested a hearing before the Board but withdrew his request. See May 2019 Correspondence. The matters are now adjudicated based on the evidence of record. Claims to Reopen 1. The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. 2. The previously denied claim of entitlement to service connection for tinnitus is reopened. In this case, the Veteran was denied service connection for bilateral hearing loss and tinnitus in a July 2012 rating decision. This claim was denied on the basis that there was no nexus between the claimed disabilities and acoustic trauma during service. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Subsequently, military personnel records were associated with the file in November 2015 that do not appear to have been of record at the time of the earlier decision. As such, these claims fall under 38 C.F.R. § 3.156(c)(1), which provides that "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." As these records speak directly to the Veteran's in-service duties, primarily by establishing his record of combat, they are ultimately relevant to the question of an in-service incurrence of the Veteran's claimed hearing loss and tinnitus. The receipt of new service records on their own warrants reopening and reconsideration of the Veteran's claim, regardless of any action on his part to submit new and material evidence. The claims are thus reopened. Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the 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). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that "shown as such in service" means "clearly diagnosed beyond legitimate question"). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board's analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 3. Entitlement to service connection for bilateral hearing loss is granted. 4. Entitlement to service connection for tinnitus is granted. The Veteran seeks service connection for bilateral hearing loss and tinnitus. Bilateral sensorineural hearing loss meeting the criteria of 38 C.F.R. § 3.385 was shown during the April 2012 VA examination. The Veteran's DD -214 indicates he served in Vietnam during combat, received a "sharpshooter" badge, and had multiple periods where his principal duty was that of a cannoneer. Alone, these factors show a high likelihood of acoustic trauma. Moreover, the Veteran reported an incident during a "fire mission" where he walked under a howitzer and had blood coming from both ears, a 6 hour loss of hearing following this incident, and an onset of tinnitus during active service. See March 2012 VA examination letter. The specific incident reported is not documented in the service treatment records. However, the Veteran is noted in the military record to have directly engaged in combat with hostile forces in Vietnam, and to have served as a cannoneer; any incurrences credibly reported during a fire mission would qualify for the combat presumption. As the Veteran's report is consistent with the circumstances of his combat service, the Board finds the Veteran's report credible. Finally, on the Veteran's September 1970 report of medical history at separation, the Veteran specifically reported suffering from hearing loss. Between the Veteran's MOS, his statements regarding noise exposure during combat, and his specific notation of hearing loss at separation, the in-service incurrence criterion is met for both claims. The final question is whether the Veteran's current bilateral hearing loss and tinnitus are related to his active service. On this front, there are two negative VA opinions. The first, from April 2012, confirmed diagnoses of bilateral hearing loss, and bilateral tinnitus, and provided a negative nexus opinion for the Veteran's hearing loss and tinnitus being related to service. The examiner relied on the Puretone thresholds for determining the Veteran's hearing loss was unrelated to his reported in-service acoustic trauma, finding there was no threshold shift. However, the examiner also opined against the tinnitus claim based on the lack of chronicity and noted "tinnitus seldom occurs without causing some permanent change in hearing." When the Veteran was scheduled for a reexaminaiton in August 2015, he declined new audiometric testing after a disagreement with the examiner regarding the history of service treatment records he had supplied. Pursuant to the examiner's notes, the Veteran believed his hearing had diminished from his enlistment to his separation, but the Veteran was looking at the wrong examinations. Again, from the examiner, when she informed the Veteran of this fact, he alleged that his records had been falsified and refused to undergo his examination. The August 2015 examiner did offer an opinion, though, determining that it was less likely than not that the Veteran's current bilateral hearing loss is related to his active service. She specifically noted the lack of "continuity of care" following the Veteran's separation as a reason underlying her opinion. On review, the Board disagrees with both examiners, and instead concludes that service connection is warranted. First, the April 2012 examiner contained an inadequate rationale in opining against the claim for tinnitus. Lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is credible in this report: there is no contrary entry in the service treatment records and he reported hearing problems at separation. The lack of care for this condition over the years does not invalidate this reported symptom or the chronicity of it. The Board finds the report of chronic tinnitus with an onset during active service to be credible, and service connection is awarded on appeal for this condition. Having awarded service connection for tinnitus, the Board adopts the rationale of the April 2012 VA examiner that "tinnitus seldom occurs without causing some permanent change in hearing" for the purposes of this appeal. As it is determined that the Veteran's tinnitus had an onset in service, it appears likely that there was also a change in hearing at the same time. While there is no evidence to support the Veteran's contention that the induction and separation examinations were switched, the Veteran's complaint of hearing loss at his separation examination establishes his subjective observation regarding his hearing ability. Quite simply, the Veteran was exposed to noise during his active service in a variety of ways (including combat), he noted his subjective complaints of hearing loss at separation, he has noted continued symptoms since service, and the April 2012 examiner's opinion can be read to support his contention. Further evidence is unnecessary; the Board resolves all reasonable doubt in the Veteran's favor and concludes that his current bilateral hearing loss is related to his active service. Service connection for bilateral hearing loss is therefore also warranted. Of final note, the military record documents significant heroism by the Veteran, and the Board thanks the Veteran for his meritorious service. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING, 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.