Citation Nr: 18160380
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-03 680
DATE:	December 26, 2018
ORDER
New and material evidence not having been received, the Veteran’s application to reopen the claim for service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is granted.
FINDINGS OF FACT
1. An unappealed May 2012 rating decision denied the claim for to service connection for bilateral hearing loss.  New and material evidence was not received as to this issue within the one-year appeal period after issuance of that decision.
2. Evidence received since the May 2012 rating decision relevant to the issue of entitlement to service connection for bilateral hearing loss does not raise a reasonable possibility of substantiating the claim.
3. Resolving all doubt in favor of the Veteran, his tinnitus is etiologically related to his service.
CONCLUSIONS OF LAW
1. New and material evidence has not been received sufficient to reopen the claim for entitlement to service connection for bilateral hearing loss.  Therefore, the claim is not reopened. 38 U.S.C. §§ 1110, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303.
2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from June 1970 to December 1971.
New and Material Evidence—Hearing Loss
Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran’s claims, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); 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. § 20.200. 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. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 
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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 
The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). 
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 presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App 273, 283 (1996). 
For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
For the purposes of applying 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 (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Veteran seeks to reopen his claim for service connection for bilateral hearing loss. The record reflects that a claim for service connection for bilateral hearing loss was last denied in a May 2012 rating decision. According to that determination, competent evidence of record showed slight hearing loss, but not hearing loss as defined by 38 C.F.R. § 3.385.  The Veteran did not express timely disagreement or submit new and material evidence within one year, and thus the May 2012 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran’s claim for service connection may only be reopened if new and material evidence is received.
Evidence received since the May 2012 rating decision include VA treatment records and an April 2014 statement from the Veteran’s private treating physician. VA treatment records note the Veteran was given an audiological examination in August 2013. The audiologic examiner reported only slight hearing loss without audiometric measurements given. The April 2014 statement from the Veteran’s private physician noted a slight hearing loss but did not provide any audiometric measurements.  
A hearing loss disability for VA purposes is defined by 38 C.F.R. § 3.385 and is based on objective audiometric and speech recognition testing. Here, relevant evidence received since the final May 2012 determination is absent for evidence of current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.
The Board acknowledges that the Veteran has submitted his own statements since the final May 2012 rating decision indicating that he has difficulty hearing. The Veteran is competent to report subjective changes in his hearing acuity, and the Board finds no reason to doubt his credibility in that regard. However, his statements are essentially the same as those he made in support of his previously denied claim. Therefore, his statements are not considered new, and are not sufficient to reopen the previously denied claims.
In summary, the Veteran was denied service connection for bilateral hearing loss in the May 2012 rating decision because he did not have a current bilateral hearing loss disability for VA purposes at that time. Evidence received since the May 2012 rating decision is cumulative of evidence already considered by VA, does not relate to an unestablished fact necessary to substantiate the previously denied claim, and/or does not raise a reasonable possibility of substantiating the previously denied claim. 38 C.F.R. § 3.156. The competent medical evidence of record shows that the Veteran continues not to have a bilateral hearing loss disability for VA purposes. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for bilateral hearing loss has not been received, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection for bilateral hearing loss is not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
Service Connection—Tinnitus
Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 
Here, the Veteran contends that his tinnitus is attributable to noise exposure he experienced while serving on active duty. First, the Board notes that VA treatment notes reflect a diagnosis of tinnitus and record the Veteran’s complaints of ringing in the ears. His DD Form 214 indicates that his military occupational specialty was that of a cook attached to an artillery unit, and he has stated on multiple occasions that he was exposed to noise during service from his work near artillery. His in-service exposure to acoustic trauma is therefore conceded. The Veteran has consistently maintained that he first noticed ringing in his ears in service and has continued to experience the same symptoms from that time to the present.
The Veteran’s service treatment records are silent as to any treatment or diagnosis of tinnitus. Post-service treatment records reflect that the Veteran has been diagnosed with tinnitus.  A May 2012 VA examination report notes the Veteran’s assertion of onset of tinnitus as a result of acoustic trauma while in active service. The examiner opined that the Veteran’s claimed tinnitus was less likely than not related to his service. For rationale he stated that only seldom does noise cause permanent tinnitus without causing hearing loss. As the Veteran presented at the examination with normal hearing, the examiner concluded the Veteran’s tinnitus was not related to his active service.
A private physician submitted a statement dated April 2014 which gave a positive nexus opinion for the Veteran’s tinnitus. The physician stated, after review of post-service treatment records, that it is more likely than not that the Veteran’s tinnitus is related to his military acoustic trauma. The physician did not give any rationale or support for his medical opinion.
In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).
As an initial matter, the Board notes that ringing in the ears is the type of symptom that is readily amenable to lay observation as it is subjective to the claimant; thus, the Veteran is competent to report his symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran’s reports detailing his tinnitus and his contention that he was exposed to sound in service have been unwavering. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. The Board finds the Veteran’s statements are credible and probative.
Regarding the Veteran’s tinnitus claim, upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for tinnitus is warranted. The evidence shows a current diagnosis of tinnitus, which the Veteran has reported began during service and has continued from that time to the present. With regard to the Veteran’s complaints of in-service noise exposure, the Board finds his account credible as it is consistent with his military personnel records. As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of tinnitus.
The Board acknowledges the May 2012 examination report which stated that the Veteran’s tinnitus is not etiologically linked to military service. However, the Board finds that this medical opinion did not give due consideration to the Veteran’s highly competent account of the onset of symptoms in service and their continuity thereafter or to his credible and corroborated report of noise exposure in service. As noted above, the Veteran’s exposure to acoustic trauma is conceded. Thus, the Board finds that the May 2012 VA examination is not probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the April 2014 private physical statement gives a positive nexus opinion, it fails to state any rationale or support for the opinion; thus, the Board finds the statement is not probative. Despite the absence of a medical nexus opinion linking tinnitus to the Veteran’s in-service noise exposure, service connection may be granted based on continuity of symptomatology of a chronic disease, which includes tinnitus under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). As the Board has no reason to doubt the veracity of the Veteran’s statements regarding the onset of his tinnitus and the continuity of pertinent symptomatology, the Board resolves all doubt in favor of the Veteran, finds that tinnitus is related to his service, and finds that service connection for tinnitus is warranted. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Peden, Associate Counsel 

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