Citation Nr: A24074635 Decision Date: 11/14/24 Archive Date: 11/14/24 DOCKET NO. 200817-104098 DATE: November 14, 2024 ORDER 1. New and relevant evidence has been submitted to warrant readjudication of the claim of entitlement to service connection for bilateral hearing loss disability. 2. New and relevant evidence has been submitted to warrant readjudication of the claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral hearing loss disability is granted. 4. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. New and relevant evidence has been received after a February 2013 rating decision to readjudicate the claim for service connection for bilateral hearing loss disability. 2. New and relevant evidence has been received after a February 2013 rating decision to readjudicate the claim for service connection for tinnitus. 3. Providing the full benefit of the doubt to the Veteran, the evidence supports that the bilateral hearing loss disability is related to his military service. 4. Providing the full benefit of the doubt to the Veteran, the evidence supports that the tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for bilateral hearing loss disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501, 19.2(a). 2. The criteria for readjudicating the claim for service connection for tinnitus disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501, 19.2(a). 3. The criteria for entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the Army from July 1969 to July 1971, including combat in the Republic of Vietnam. This matter is before the Board on appeal of a July 2020 rating decision from the agency of original jurisdiction (AOJ), which found that there was no new and relevant evidence to warrant readjudication of the Veteran's service-connection claims for bilateral hearing loss disability and tinnitus since the previous adjudication of the Veteran's claims in February 2013. The Veteran appealed the July 2020 AOJ decision through the submission of an August 2020 VA Form 10182, Notice of Disagreement, electing the hearing docket. A virtual Board hearing was held before the undersigned Veterans Law Judge (VLJ) in June 2024. Under the hearing docket of the Appeals Modernization Act (AMA), the Board may consider only the evidence of record at the time of the July 2020 AOJ decision on appeal as well as any evidence submitted by the Veteran or his representative at or within 90 days from the date of the Veteran's June 2024 Board hearing. 38 C.F.R. § 20.302. The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the date of the Veteran's Board hearing or (2) evidence submitted more than 90 days after the Veteran's Board hearing, which would have been on September 10, 2024. 38 C.F.R. § 20.302. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. New and Relevant Evidence Claim of entitlement to service connection for bilateral hearing loss disability Claim of entitlement to service connection for tinnitus Pursuant to the AMA, the provision (38 U.S.C. § 5108) pertaining to readjudicating previously denied claims was amended and replaces the new and material standard for reopening claims and applies to supplemental claims. "If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record." 38 U.S.C. § 5108(a). At any time after the claim has been adjudicated, the Veteran may request a readjudication of the same claim. See 38 C.F.R. § 3.156(d). A readjudication will be granted and the claim will be readjudicated, so long as the Veteran's request is supported by new and relevant evidence. Id. "New evidence" means evidence not previously part of the actual record before agency adjudicators. See 38 C.F.R. § 3.2501(a). "Relevant evidence" refers to any evidence that tends to prove or disprove a matter at issue, to include a theory of entitlement not previously addressed. Id. The Veteran asserts that he has submitted new and relevant evidence that warrants readjudication of the claims for service connection for bilateral hearing loss and tinnitus. The Board has carefully reviewed the evidence of record and finds that the Veteran submitted new and relevant evidence to warrant readjudication of his claims. The reasons follow. The claim for service connection for a bilateral hearing loss disability was denied in a February 2013 rating decision in the legacy system based on a finding that the Veteran's service records did not support a relationship between the Veteran's current conditions and his military service. Since that time, the record contains a VA audiological examination, which contains contentions as to the Veteran's in-service noise exposure and related symptomology, that were not of record at the time of the February 2013 rating decision. Therefore, the Board finds that new and relevant evidence has been received to readjudicate the claims for service connection for bilateral hearing loss and tinnitus, and the application to have the claim readjudicated is granted. Service Connection Service connection for bilateral hearing loss disability Service connection for tinnitus Generally, to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). For the following reasons, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Bilateral sensorineural hearing loss, as an organic disease of the nervous system, is an enumerated disease. Fountain v. McDonald, 27 Vet. App. 258, 271-272 (2015) (sensorineural hearing loss is within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a) and citing with approval a VA Training Letter interpreting "other organic diseases of the nervous system" to include sensorineural hearing loss). Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The U.S. Court of Appeals for Veterans Claims (Court) in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his present disability. The Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that 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. The Veteran contends that his bilateral hearing loss and tinnitus began in-service relating to excessive noise exposure, which includes close range exposure to machine gun fire and land mines during combat. A VA audiological testing report from July 2020 shows the Veteran to meet the current disability requirement for bilateral sensorineural hearing loss under 38 C.F.R. § 3.385 as there are multiple frequencies at which the thresholds exceed 40 decibels. Treatment records further support the Veteran to experience recurrent tinnitus. Accordingly, the Veteran is found to have present disabilities. As noted above, the provisions of the combat law are for application here. Thus, the in-service requirement has been met. Moreover, the Veteran is competent to report that he experienced occluded hearing acuity and tinnitus during active-duty service and continuously thereafter. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding observable symptoms); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Indeed, the acoustic trauma experienced by a Light Weapons Infantryman, as conveyed by this combat Veteran who served in the Republic of Vietnam, is also consistent with the places, types, and circumstances of service, and there is nothing of equal or greater probative weight in the evidence of record to contradict them. See 38 U.S.C. § 1154(b); 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). As the probative evidence of record supports that the Veteran's hearing loss and tinnitus began in service, service connection is warranted on a presumptive basis. The evidence of record contains conflicting etiological opinions from VA examiners in April 2007, May 2012, and September 2012. These examinations are of diminished probative value as they did not contemplate the new and relevant evidence received thereafter and discussed above. Additionally, the negative etiological opinions rely on a lack of evidence in the service records and elsewhere, which combat law was designed to prevent. Reeves v. Shinseki, 682 F.3d at 998 (Congress enacted 38 U.S.C. § 1154(b) because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service; in many instances, medical records do not survive combat conditions and due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries). Thus, the negative opinions of record are not fully adequate. To the extent that the grant of service connection for bilateral hearing loss disability and tinnitus is based upon consistent and competent lay evidence rather than the inadequate VA audiologist's negative etiological opinion, "[n]othing in the regulatory or statutory provisions [relating to evidence to be considered] requires both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. For the reasons laid out above, the evidence is sufficient to decide the Veteran's service connection claims, as it is at least evenly balanced as to whether the Veteran's bilateral hearing loss and tinnitus had its onset in service after acoustic trauma due to combat. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wonderling, Gabriel N. 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.