Citation Nr: 18132308
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-04 137
DATE:	September 6, 2018
ORDER
The petition to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is granted.
The petition to reopen the previously denied claim for entitlement for service connection for tinnitus is granted.
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to service connection for tinnitus is granted.
FINDINGS OF FACT
1. A July 2009 rating decision last denied service connection for bilateral hearing loss and tinnitus.
2. Evidence pertaining to the Veteran’s bilateral hearing loss and tinnitus since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims.
3. The Veteran has a current diagnosis of bilateral hearing loss and tinnitus.
4. The most probative evidence of record establishes that the Veteran’s bilateral hearing loss is caused by, or related to, his active duty.
5. The most probative evidence or record establishes that the Veteran’s tinnitus is caused by, or related to, his active duty. 
CONCLUSIONS OF LAW
1. The July 2009 rating decision that last denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 
2. The evidence received since the last final July 2009 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103.
3. The evidence received since the last final July 2009 rating decision is new and material, the claim for service connection for tinnitus is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103.
4. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
5. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from February 1971 to June 1975. 
New and Material Evidence
1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss.
2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus.
The Veteran most recently filed a request to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus in November 2013.
At the time of the last final denial of the Veteran’s claims for service connection for bilateral hearing loss and tinnitus in July 2009, evidence of record included the Veteran’s application for compensation and service treatment records (STRs).
Evidence associated with the claims file since the previous July 2009 denial includes the Veteran’s statements, military personnel records, VA treatment records, and a VA examination. The June 2014 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. 
Based on a review of this new evidence, the Board finds that new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for bilateral hearing loss and tinnitus are reopened.

Service Connection
3. Entitlement to service connection for bilateral hearing loss.
4. Entitlement to service connection for tinnitus.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 
In addition, service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
For the purposes of applying the laws administered by VA, impaired hearing is considered to be 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 those 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. It has been established 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 medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d).
In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). 
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). 

According to the service treatment records (STRs), the Veteran experienced a threshold shift from enlistment to separation from service. However, the STRs are silent for any complaints of tinnitus or hearing loss. The Veteran’s military personnel records indicate that he was exposed to artillery and ammunitions according to his military occupational specialty (MOS).
In a February 2009 statement, the Veteran stated that his hearing loss and tinnitus began in service when he was assigned to artillery. He explained that he was assigned to an airmobile artillery and he was exposed to rounds of shooting during training. He stated that his ears have been ringing since this assignment. 
A VA examination took place in June 2014 to evaluate the Veteran’s claimed hearing loss and tinnitus. At that time, the Veteran reported that he had difficulty using the telephone. He also stated that he cannot always understand conversational speech and distinguish sounds. He stated that his hearing loss has worsened throughout the years. The June 2014 examiner diagnosed the Veteran with sensorineural hearing loss in both ears. The examiner stated that he cannot provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. He reasoned that no hearing tests were available during or at the conclusion of the Veteran’s service, therefore the examiner could not determine if the Veteran had a change from his baseline. The examiner found that the Veteran was exposed to hazardous noise during service. The examiner also stated that the Veteran’s hearing tests from enlistment in February 1971 showed normal hearing sensitivity in both ears. 
Regarding tinnitus, the Veteran stated that he has experienced ringing in the ears for as long as he can remember and it probably began the first time he heard an artillery shell go off. He stated that his ears did not ring prior to enlistment in the military. The June 2014 examiner opined that the Veteran’s tinnitus was more likely than not a symptom of his hearing loss. The examiner further stated that he cannot provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation because no hearing tests were available during or at the conclusion of the Veteran’s military service, therefore he cannot determine if the Veteran had a change from his baseline. The examiner found no complaints of tinnitus in the Veteran’s medical records.  
On the October 2014 notice of disagreement (NOD), the Veteran stated his hearing loss was a result of noise exposure in service. He stated that he was a gunner and a field artillery crewman in a field artillery battalion. He stated that he routinely participated in live fire training events. He stated that he also had routine firing of field artillery and small arms. He stated that he was not always provided hearing protection. He asserted that his MOS was listed as highly probable for hearing loss and noise damage by VA. The Veteran stated that he started to experience a dull ringing in his hears during service in Germany that has persisted. Further, the Veteran asserted that his hearing loss occurred when he was stationed in Hawaii as a result of his exposure to weapons fire.
On the February 2016 substantive appeal, the Veteran stated that his MOS of field artillery crewman was listed as highly likely to cause hearing loss and tinnitus.
Upon review of the record, the Board finds that the most probative evidence of record establishes that the Veteran’s bilateral hearing loss and tinnitus are related to his active service. The Veteran’s STRs reveal that he had normal hearing during his service for VA disability purposes. However, the Board notes that the audiometric data from the May 1975 separation examination included increased puretone thresholds in the frequency range of 500 to 4,000 Hertz. In addition, the Board has carefully reviewed the Veteran’s statements of record. The Veteran stated that he was exposed to loud noises from artillery fire. The Board finds that the Veteran, as a lay person, is competent to testify to having been exposed to loud noises during service and experiencing decreased hearing acuity and tinnitus. See Layno, 6 Vet. App. at 470. Moreover, there is no evidence to doubt his credibility. The Veteran’s statements regarding his noise exposure while in service are consistent with his military personnel records. The Veteran’s statements also reflect a continuity of symptomatology of hearing loss and tinnitus. Accordingly, the Board assigns great probative weight to the Veteran’s statements regarding the inception and persistence of his hearing loss and tinnitus. 38 C.F.R. § 3.303(b). 
Although the June 2014 VA examination confirmed a current diagnosis for bilateral hearing loss and tinnitus, the examiner could not opine regarding their etiology. The examiner provided an opinion based on a legally insufficient rationale. One of the examiner’s reasons for his lack of a nexus opinion is that the Veteran’s enlistment examination showed normal hearing bilaterally and no complaints of tinnitus or hearing loss in the STRs. Further the examiner stated that STRs contain no audiometric testing at separation. However, the Veteran did undergo a separation examination in May 1975, where an audiology examination was administered, in which a shift in puretone thresholds was indicated. In Hensley v. Brown, the Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing at separation from service. Therefore, the Board finds that the June 2014 VA opinion is inadequate with respect to the question of nexus because the examiner did not address the Veteran’s threshold shift in hearing acuity from enlistment to and separation from service. Accordingly, the Board assigns less probative weight to the opinion.
As such, based on the most probative evidence of record, the Board finds that the Veteran’s bilateral hearing loss and tinnitus are related to his active service. Therefore, service connection for bilateral hearing loss and tinnitus is warranted. 
 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Thompson, Associate Counsel 

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