Citation Nr: A22022427 Decision Date: 11/07/22 Archive Date: 11/07/22 DOCKET NO. 210301-143909 DATE: November 7, 2022 ORDER New and relevant evidence having been received, readjudication of the claim for entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. New evidence received since the December 2015 rating decision is relevant to the issue of entitlement to service connection for bilateral hearing loss. 2. The appellant's bilateral hearing loss is approximately as likely as not due to his in-service jet engine noise exposure. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim of entitlement to service connection for bilateral hearing loss are met. 38 C.F.R. § 3.156(d). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Navy from May 1961 to September 1964. He also served periods of active duty for training (ADT) and inactive duty for training (IDT) from 1964 to 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, found that new and relevant evidence had not been received to readjudicate a previously denied claim for service connection for bilateral hearing loss. By way of history, in December 2020, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of a claim for service connection for bilateral hearing loss, most recently denied in an October 2015 rating decision. In January 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. In the March 1, 2022, VA Form 10182, Decision Review Request: Board Appeal, the appellant appealed the January 2021 rating decision to the Board and elected the Hearing docket. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the appellant or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). As an initial matter, the Board notes that the appellant submitted an additional VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits in December 2020, claiming entitlement to service connection for tinnitus. This issue was adjudicated separately from the claim for readjudication of the previously denied claim for service connection for bilateral hearing loss. The AOJ issued a rating decision denying service connection for tinnitus on March 8, 2021. The appellant had included tinnitus on his VA Form 10182, received on March 1, 2021. However, because no decision had yet been promulgated with regards to the claim for service connection for tinnitus at the time the March 1, 2021, VA Form 10182 was received, the Board cannot adjudicate an appeal on the issue of entitlement to service connection for tinnitus. New and Relevant Evidence 1. New and relevant evidence having been received, readjudication of the claim for entitlement to service connection for bilateral hearing loss is granted. If new and relevant evidence is presented or secured with respect to a supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501 (a)(1). In October 2022, within 90 days of his hearing before the Board, the appellant submitted two medical opinions from two separate audiologists that both indicate that his hearing loss disability is approximately as likely as not related to his in-service noise exposure working on the flight deck of a United States naval aircraft carrier. The Board finds that this evidence is new, as it was not previously of record, and relevant, as it tends to prove a matter at issue in the claim, the previously missing element of nexus. As such, the Board finds that readjudication of this claim on the merits is warranted. 38 C.F.R. § 3.156(d). Service Connection 1. Entitlement to service connection for bilateral hearing loss is granted. The appellant contends that his bilateral hearing loss is approximately as likely as not due to significant jet engine noise exposure, along with other loud noise exposure, related his duties working on the flightline of an aircraft carrier. After a review of the evidence of record, the Board finds that the evidence is in relative equipoise on the question of whether the appellant's currently-diagnosed bilateral hearing loss disability is related to his period of active service. As such, the Board grants the appellant the benefit of the doubt and concludes that the criteria for entitlement to service connection are met and that service connection for bilateral hearing loss is warranted. 38 C.F.R. §§ 3.102, 3.303. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (U.S. Fed. Cir. 2021). A VA examination in May 2005 showed that the appellant did have hearing loss for VA purposes at that time. See 38 C.F.R. § 3.385. Subsequent private and VA testing in the years since has not shown improvement in the appellant's hearing acuity and has continued to show a hearing loss disability for VA purposes. As such, the Board finds that the first criterion for service connection has been met. The appellant served as an officer on active duty in the United States Navy and later in the United States Navy Reserve. He reports that his primary job duty was to supervise the loading and preparation of live ordinance on the flight line of an aircraft carrier. He states that he was frequently exposed to loud noises and jet engine noise as part of these duties. He also reports having to supervise weapons qualifications and firearms checks for the ship's fighter pilots prior to them taking off on missions. Reports of noise exposure working on the flight line is consistent with the appellant's military personnel records which indicate he specialized in weapons loading management. The Board notes that positions in naval aviation are highly probable for noise exposure. The appellant indicated that he did notice changes to his hearing acuity at this time during active service. Some of his hearing acuity testing from his period of reserve service do show fluctuations in his hearing acuity, although of note, they do not generally show a pattern of reduced hearing acuity that would be considered a hearing loss disability for VA purposes. All hearing testing done during his period of active service was done by whisper voice test, which VA has previously determined to be an unreliable measure of the presence of a hearing loss disability. After considering the record, the Board finds that the second criterion for service connection has been met, an in-service injury, given the appellant's competent and credible reports of significant noise exposure. Turning to the question of whether the appellant's current hearing loss is related to his in-service noise exposure, the Board has considered several medical opinions of record. A VA medical opinion from May 2005 opined that the appellant's pattern of hearing loss was inconsistent with noise exposure because the appellant did not report tinnitus, could only give vague reports regarding the onset of his hearing loss, and had no documented hearing loss during his period of active service. A VA medical opinion from January 2021 found that the appellant's hearing loss was not as likely as not due to his in-service noise exposure. The examiner found his MOS had a low probability of noise exposure, despite the appellant's reports regarding his duties on the flight line, and that there was no documented hearing loss for more than 30 years post military service. The examiner also opined that the pattern of low frequency hearing loss was inconsistent with noise exposure related hearing loss. In October 2022, the appellant submitted two private medical opinions from two separate providers which both considered his entire record and his military noise exposure. Both private opinions determined that his current pattern of hearing loss was consistent with noise induced hearing loss and that this noise exposure was more likely than not experienced during military service. All of these opinions have been offered by licensed audiologists who are qualified to conduct the diagnostic testing to determine current hearing acuity and provide medical opinions on the cause of any impairment of hearing acuity. All of the opinions are well reasoned and based upon a review of the relevant facts and records. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). As such, the Board finds that all of these opinions are competent and are entitled to significant probative weight. The Board does not find any one opinion more probative than the others though. What is manifest in the opinions seems to be a disagreement between medical experts on the question of delayed onset of hearing loss after significant noise exposure. As such, the Board finds that the evidence is in relative equipoise on the question of causation. Consequently, with the evidence in relative equipoise, the Board finds that the appellant should be afforded the benefit of the doubt on the question of nexus. Consequently, the Board finds that all of the elements of entitlement to service connection are met for this claim. As the criteria for entitlement to service connection for bilateral hearing loss are met, the Board concludes that service connection is warranted in this case and the claim is granted. 38 C.F.R. § 3.303. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.