Citation Nr: 22014504 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-35 448 DATE: March 14, 2022 ORDER New and material evidence having been received, the Veteran's application to reopen the previously denied claim of entitlement to service connection for tinnitus is granted. New and material evidence having been received, the Veteran's application to reopen the previously denied 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. Evidence received since the final November 2011 rating decision is new and material to the issue of entitlement to service connection for tinnitus. 2. Evidence received since the final November 2011 rating decision is new and material to the issue of entitlement to service connection for bilateral hearing loss. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record demonstrates that his tinnitus was incurred in or the result of his service. 4. Resolving reasonable doubt in the Veteran's favor, the evidence of record demonstrates that his bilateral hearing loss was incurred in or the result of his service. CONCLUSIONS OF LAW The criteria for reopening the claim for service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The criteria for reopening the claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1967 to May 1969, to include service in Vietnam. He is the recipient of a Vietnam Service Medal and a Republic of Vietnam Campaign Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a February 2022 Board hearing. 1. New and material evidence having been received, the claim to reopen the previously denied entitlement to service connection for tinnitus is granted. 2. New and material evidence having been received, the claim to reopen the previously denied entitlement to service connection for bilateral hearing loss is granted. By way of history, the Veteran submitted a claim of service connection for tinnitus and bilateral hearing loss in February 2011. A November 2011 rating decision denied the Veteran's claims. The Veteran did not appeal the November 2011 rating decision. The decision is final. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In August 2017, the Veteran submitted correspondence requesting to reopen the claims of entitlement to service connection for tinnitus and bilateral hearing loss. In this case, the Board finds that new and material evidence has been received subsequent to the final November 2011 rating decision. Relevant evidence added to the claims file since the November 2011 rating decision includes a lay statement by a fellow service member attesting to the Veteran's duties on the flight line and exposure to acoustic trauma; August 2017 and October 2019 positive private nexus opinions regarding the Veteran's bilateral hearing loss and tinnitus claims; and the Veteran's testimony during his February 2022 Board hearing of continuity of symptomatology during and following service. This evidence satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claims and was not before decision makers at the time of the November 2011 rating decision. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claims of service connection for tinnitus and bilateral hearing loss. Service Connection In general, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). After careful consideration of the evidence, any reasonable doubt remaining, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. The United States Court of Appeals for the Federal Circuit clarified in Lynch v. McDonough that the proper standard of review is whether the factors are in an "approximate balance." Lynch v. McDonough, 999 F.3d 1391 (2021). Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance or "nearly equal" and does not require the evidence to be in exact equipoise. Id. 3. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if the Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. During an October 2011 Audiology examination, the Veteran reported constant tinnitus that began in 1970. The examiner found that the Veteran's tinnitus was less likely than not a result of acoustic trauma sustained in the military and more likely than not a manifestation of post occupational noise exposure as well as presbycusis. Following an examination and complete review of the Veteran's history, a private positive nexus opinion was provided in August 2017, finding that the Veteran's tinnitus was more likely than not related to noise exposure during military service. Considering the totality of the evidence, including the Veteran's report of tinnitus occurring during and since service is credible to support a diagnosis, in-service incurrence, and nexus to support the service connection claim. Therefore, the evidence of record is at least in relative equipoise for a grant for service connection. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks entitlement to service connection for bilateral hearing loss. Service connection for hearing loss claims are defined by regulation. Specifically, under the laws 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; when the auditory thresholds for at least three of the above 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. Moreover, to establish service connection for sensorineural hearing loss, the Veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. The record shows the Veteran has been diagnosed with bilateral hearing loss for VA purposes. See October 2011 examination. Therefore, the first element of service connection has been established. The Veteran's service treatment records (STRs) are silent as to any complaint, treatment, or diagnosis of hearing loss. The Veteran's entrance and separation examinations did not reveal hearing loss at any time during active-duty service. However, the Veteran asserts that he was exposed to acoustic trauma during service, and he has experienced difficulty since service, with progressively worsening symptoms. The Veteran's military occupational specialty (MOS) was an aircraft mechanic, an MOS with a high probability of exposure to loud noises. Additionally, a lay statement was provided by a fellow service member in August 2017, reporting that the Veteran's MOS required 8 to 15-hour days on the flight line, with exposure to all types of aircraft noise. As such, the first and second elements of service connection have been met. Thus, this appeal turns on the third element of service connection, nexus. During an October 2011 Audiological examination, the Veteran reported exposure to jet noises and rocket attacks while in the military. The Veteran noted difficulty hearing since 1970. A diagnosis of bilateral mild sensorineural hearing loss was noted. The examiner found that the Veteran's hearing loss was less likely than not related to acoustic trauma sustained in service. For rationale, the examiner noted that the medical records support normal hearing at induction and again at separation. The Veteran's hearing loss is more likely than not a manifestation of post occupational noise exposure as well as presbycusis. In August 2017 and again in October 2019, the Veteran's private physician opined that the Veteran's bilateral hearing loss was more likely than not related to service. The Veteran contended exposure to rifle fire, machine gun fire, mortars, artillery, loud engines, heavy equipment, explosions, and aircraft noise during service and the examiner found this to be significant in the Veteran's hearing loss disability. The opinion was based on a thorough understanding of the Veteran's medical history. In regard to the October 2011 examination, the Board finds the opinion is inadequate. The examiner essentially based the rationale on a lack of contemporaneous medical records as evidenced by the examiner's indication that from enlistment to separation the Veteran's hearing was within normal limits. The examiner did not discuss the Veteran's lay statements regarding hearing loss or exposure to acoustic trauma during service. The Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds the favorable opinions of record, the August 2017 and October 2019 private opinions, to sufficiently inform the Board of the medical expert's judgment on the medical question and the essential rationale for that opinion, and such rationale is easily discernable. Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008). Dr. A.W. reasoned with consideration and acknowledgement based on the history of the condition in relation to the Veteran's lay statements and medical expertise. Dr. A.W. found the Veteran's noise exposure in service, including exposure to rifle fire, machine gun fire, mortars, loud engines, heavy equipment, explosions, and aircraft noise, caused his current hearing loss disability. Of note, the Board finds the Veteran's lay statements credible as he is competent to report that he had hearing problems during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Hence, the factual foundation of Dr. A.W.'s opinions is accurate and credible. Dr. A.W. is also competent to provide such opinion. Thus, the Board credits the August 2017 and October 2019 private opinions and assigns significant probative weight. There is no competing adequate medical opinion of record. Thus, when resolving reasonable doubt in favor of the Veteran, the evidence of record is at least in equipoise as to whether the Veteran's bilateral hearing loss disability is caused by active-duty service. Therefore, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.