Citation Nr: 21041366 Decision Date: 07/09/21 Archive Date: 07/08/21 DOCKET NO. 19-04 650 DATE: July 9, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for tinnitus is granted. New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A July 2003 decision denied service connection for tinnitus. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 2. Evidence received since the July 2003 decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. 3. A July 2003 decision denied service connection for bilateral hearing loss. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 4. Evidence received since the July 2003 decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. 5. The Veteran's tinnitus is etiologically related to service. 6. The Veteran's bilateral hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for tinnitus. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1954 to November 1957. These matters come to the Board of Veterans' Appeals (Board) from a December 2018 rating decision that denied service connection for tinnitus and bilateral hearing loss. The Board notes that the Veteran originally requested a hearing before a Veterans Law Judge, but withdrew this request in June 2021. The Board also notes that the Veteran submitted a private treatment record after the January 2019 Statement of the Case that has not been considered by the agency of original jurisdiction (AOJ) in the first instance. The Board, however, may consider this evidence in the first instance because this decision constitutes a full grant of the benefits sought. 38 C.F.R. § 20.1305(c). Reopening of Claims The Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of service connection for tinnitus and bilateral hearing loss before addressing the claim on the merits. 38 U.S.C. § 7104; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 19.20, 19.52. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, the AOJ shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been submitted) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. A July 2003 decision denied service connection for tinnitus because the Veteran's medical records were likely destroyed in a fire and the Veteran did not complete a NA Form 13055, Request for Information Needed to Reconstruct Medical Data. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In September 2018, the Veteran attempted to reopen his claim. Since the July 2003 decision, evidence added to the claims file includes a November 2018 VA examination. This evidence pertains to whether the Veteran has a current disability of tinnitus and whether this disability is related to service. The Board finds that this evidence satisfies the low threshold of raising a reasonable possibility of substantiating the claim. Therefore, the Board concludes that new and material evidence has been received since the July 2003 decision and reopening the claim of service connection for tinnitus is warranted. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. A July 2003 decision denied service connection for bilateral hearing loss because the Veteran's medical records were likely destroyed in a fire and the Veteran did not complete a NA Form 13055, Request for Information Needed to Reconstruct Medical Data. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In September 2018, the Veteran attempted to reopen his claim. Since the July 2003 decision, evidence added to the claims file includes a November 2018 VA examination. This evidence pertains to whether the Veteran has a current disability of bilateral hearing loss and whether this disability is related to service. The Board finds that this evidence satisfies the low threshold of raising a reasonable possibility of substantiating the claim. Therefore, the Board concludes that new and material evidence has been received since the July 2003 decision and reopening the claim of service connection for bilateral hearing loss is warranted. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The standard of proof is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. In written pleadings, to include the September 2018 VA Form 21-4138, the Veteran asserts that service connection for tinnitus is warranted. The Veteran stated that he worked as a flight line mechanic (crew chief) during service. He stated that he did not wear ear protection and that he was constantly exposed to acoustic trauma, to include jets taking off and coming in and jet maintenance. He stated that he noticed tinnitus during service. At the November 2018 VA examination, the examiner stated that noise exposure was conceded because the Veteran's military occupational specialty had a high probability of noise exposure. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure because the Veteran denied tinnitus as defined in the Tinnitus Handbook and instead reported transient ear noise that occurs in the general population without auditory damage or pathology. A February 2019 private medical record noted the Veteran's reports of hearing loss and indicated a diagnosis of bilateral tinnitus. As a preliminary matter, the Board notes that the Veteran's service treatment records are not in the claims file and were likely destroyed in a fire. A veteran is presumed to have been sound upon entry into active duty, except as to defects, infirmities, or disorders noted at the entrance to service, or where clear and unmistakable evidence demonstrates that the disability existed before entrance to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). The presumption of soundness applies even in cases where the record of the entrance examination has been lost or destroyed while in VA custody. Quirin v. Shinseki, 22 Vet. App. 390, 397, n. 5 (2009). Here, there is no evidence that the Veteran had tinnitus prior to the entrance of service. Accordingly, the Veteran is presumed to have been sound for tinnitus at the entrance of service. Turning to the issue of service connection, the Board finds that the Veteran has a current disability of tinnitus. The Veteran reported that his tinnitus began during service. The United States Court of Appeals for Veterans Claims has stated that tinnitus is the type of medical condition that can be described by lay evidence. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Because the Veteran is competent to report tinnitus, the Veteran's competent and credible lay statements are sufficient to establish a current disability. The Board accords limited probative value to the November 2018 VA examiner's opinion because it is inconsistent with the diagnosis of bilateral tinnitus mentioned in the February 2019 private medical record. Resolving any reasonable doubt in the Veteran's favor, the Board concludes that the Veteran has a current disability of tinnitus. The Board further finds that the Veteran has an in-service injury and that the Veteran's tinnitus is related to this in-service injury. While the Veteran's DD 214 is not in the claims file, an in-service injury of noise exposure is established based on the Veteran's competent and credible lay statements and the November 2018 VA examiner's concession of noise exposure. A nexus to service is established based on the Veteran's competent and credible lay statements as to continuity of symptomatology. The Board assigns limited probative weight to the November 2018 VA examiner's nexus opinion because it was based on the fact that the Veteran did not have tinnitus, and the Board has explained why the Veteran has a current disability of tinnitus. Resolving any reasonable doubt in the Veteran's favor, the Board concludes that the preponderance of the evidence supports the Veteran's claim and grants the claim of service connection for tinnitus. Entitlement to service connection for bilateral hearing loss is granted. Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. For purposes of a claim of service connection for hearing loss, a veteran's hearing loss will be considered a current disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies 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. Certain chronic diseases such as sensorineural hearing loss will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The standard of proof is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. In written pleadings, to include the September 2018 VA Form 21-4138, the Veteran asserts that service connection for bilateral hearing loss is warranted. The Veteran stated that he worked as a flight line mechanic (crew chief) during service. He stated that he did not wear ear protection and that he was constantly exposed to acoustic trauma, to include jets taking off and coming in and jet maintenance. He stated that he noticed bilateral hearing loss during service. At the November 2018 VA examination, the examiner stated that audiometric results were not valid because there was a conductive component to the Veteran's hearing loss outside of the examiner's scope of practice that warranted further evaluation. Although the examiner diagnosed the Veteran with mixed hearing loss, the examiner stated that hearing loss was present at the examination consistent with noise-induced hearing loss. The examiner stated that noise exposure was conceded because the Veteran's military occupational specialty had a high probability of noise exposure. The examiner opined that it was at least as likely as not that the Veteran's bilateral hearing loss was caused by or a result of military noise exposure. The examiner stated that there was no evidence to refute the Veteran's claim of hearing decrease on active duty. A February 2019 private medical record noted the Veteran's reports of hearing loss. A comprehensive hearing test showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 70 85 LEFT 30 35 45 70 75 The Veteran was diagnosed with bilateral sensorineural hearing loss. The provider stated that the Veteran worked on jet engines during military service and that this service likely contributed to bilateral hearing loss. As a preliminary matter, the Board notes that the Veteran's service treatment records are not in the claims file and were likely destroyed in a fire. A veteran is presumed to have been sound upon entry into active duty, except as to defects, infirmities, or disorders noted at the entrance to service, or where clear and unmistakable evidence demonstrates that the disability existed before entrance to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). The presumption of soundness applies even in cases where the record of the entrance examination has been lost or destroyed while in VA custody. Quirin v. Shinseki, 22 Vet. App. 390, 397, n. 5 (2009). Here, there is no evidence that the Veteran had bilateral hearing loss prior to the entrance of service. Accordingly, the Veteran is presumed to have been sound for bilateral hearing loss at the entrance of service. Turning to the issue of service connection, the Board finds that the Veteran has a current disability of bilateral hearing loss. The audiometric results from the February 2019 examination showed an auditory threshold of 40 decibels or greater in at least one frequency in both ears. Moreover, while the November 2018 VA examiner stated that the audiometric results were not valid and diagnosed the Veteran with mixed hearing loss, the examiner nonetheless also stated that the examination was consistent with noise-induced hearing loss. Resolving any reasonable doubt in the Veteran's favor, the Board concludes that the Veteran has a current disability of bilateral hearing loss. The Board further finds that the Veteran has an in-service injury and that the Veteran's bilateral hearing loss is related to this in-service injury. While the Veteran's DD 214 is not in the claims file, an in-service injury of noise exposure is established based on the Veteran's competent and credible lay statements and the November 2018 VA examiner's concession of noise exposure. A nexus to service is established based on the November 2018 VA examiner's opinion. The Board accords probative weight to this opinion because the examiner provided a well-reasoned rationale and because this opinion is consistent with the February 2019 private medical record indicating that service likely contributed to the Veteran's bilateral hearing loss. Resolving any reasonable doubt in the Veteran's favor, the Board concludes that the preponderance of the evidence supports the Veteran's claim and grants the claim of service connection for bilateral hearing loss. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.