Citation Nr: 0810407 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 07-06 950 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The veteran had active military service from October 1941 to January 1946. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2006 rating decision. This case was advanced on the docket. FINDINGS OF FACT 1. The veteran's claim of entitlement to service connection for bilateral hearing loss was denied in a May 2001 rating action; the evidence submitted since May 2001 raises a reasonable possibility of substantiating the veteran's claim for service connection. 2. The medical evidence linking the veteran's bilateral hearing loss to his time in service is at least as strong as the medical evidence suggesting a nonservice related cause for the hearing loss. CONCLUSIONS OF LAW 1. New and material evidence has been submitted and the veteran's claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 2. Criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Determination The veteran's claim for service connection for bilateral hearing loss was denied by a May 2001 rating decision. The veteran failed to file a notice of disagreement with this decision and it therefore became final. Nevertheless, the law provides that a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. New evidence is defined as evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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 must raise a reasonable possibility of substantiating the claim. Id. At the time of the May 2001 denial, the record included the following evidence. Service medical records showed perfect whispered voice tests at entry, on several occasions during service, and at separation (although there was no evidence of any audiometric testing in the service medical records). A VA examination in December 1950 found the veteran's ears to be normal without discharge and it was noted that he was 20/20 on the whispered voice test. A VA treatment record in July 1999 noted that the veteran's hearing was decreased, and a VA audiologic examination in March 2000 confirmed that the veteran had hearing loss for VA purposes, and it noted that the veteran had a tympanic membrane implant around 1990 after perforating his tympanic membrane in service. It was also noted that the veteran had military noise exposure as a paratrooper with demolition training and that he was in combat for a year-and-a-half without any hearing protection. At a June 2000 VA examination, the veteran reported exposure to explosions, gunfire, and artillery during service, and he denied any occupational noise exposure. A private hearing test in March 2001 continued to show hearing loss bilaterally. In May 2001, the veteran's claim was denied based on a finding that the veteran's service medical records failed to show any evidence of hearing loss. Since May 2001, new evidence has been associated with the veteran's claims file. The veteran stated that his separation physical was brief and he did not even recall a hearing test being administered. The veteran also stated that he had been given shots of streptomycin to treat tuberculosis (TB), which he reported had a side effect on the "equilibrium nerve" in the inner ear; and he noted that his tympanic membrane had been perforated in service. In September 2004, a VA audiologist found the veteran's hearing loss to be profound and he opined that based on his findings, and on the veteran's reported history, that it was more likely than not that a component of the veteran's hearing loss was the result of acoustic trauma while on active duty, unless hearing evaluations performed at the time of and/or some date after his military discharge documented that the veteran's hearing was within normal limits or significantly better at that time. A VA examination was conducted in March 2006, which confirmed again that the veteran had bilateral hearing, and the examiner stated that he could not provide an opinion as to the etiology of the hearing loss without resulting to speculation as the veteran had a number of factors related to hearing loss that argued both for and against service connection (including streptomycin (which is a known ototoxic agent) treatment, military noise exposure, and advanced age). The veteran has also submitted a number of newspaper and scientific articles documents showing that streptomycin had ototoxicty (i.e. caused harmful effects to ear functioning) and that loss of hearing was one of the potential side effects. In November 2006, the veteran's private doctor opined that the veteran has sensorineural hearing loss that could be party due to previous streptomycin treatment. The veteran also testified that he had been to demolition school for two weeks working with explosives; and that he served in combat in the Philippines where he was exposed to gunfire and explosions; the veteran also stated that he believed that his hearing loss was the result of his streptomycin treatment. Since the veteran's denial in May 2001, new evidence has been submitted including several opinions that the veteran's hearing loss could be linked to his time in service. The veteran also advanced a new theory of causation for his hearing loss, suggesting that the medication used to treat his service-connected TB, which had a known potential side effect of deafness, caused his current hearing loss. This theory is new and it addresses treatment that occurred shortly after his time in service; as such, while it does not directly address the reason the veteran's claim was previously denied (e.g. there was no in-service evidence of hearing loss shown), it is both new and material to the issue of whether the veteran's bilateral hearing loss was caused by the veteran's military service. Additionally, the VA examiner indirectly suggested that the mere lack of a showing of hearing loss in service did not preclude a finding that the veteran's hearing loss was in fact caused by his time in service. As such, the Board finds that new and material evidence has been presented and the veteran's claim for service connection for bilateral hearing loss is therefore reopened. II. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In this case, the veteran contends that he has hearing loss as a result of his time in service. Service medical records fail to show any hearing loss during service, and the veteran successfully passed all of the whispered voice tests while he was in service. However, there is no indication that any audiometric tests were ever conducted while the veteran was in service or for a number of years after. Service records do show that the veteran served honorably in the army as a paratrooper with demolition training for more than four years during World War II, and he was awarded the combat infantry badge, among other decorations, for his combat service in the Philippines, during which time the veteran reported that he had significant military noise exposure (including gunfire, mortars, and other explosives) without any hearing protection being provided. No treatment records were presented following service for a number of years. In 1999 it was noted in a VA treatment record that the veteran had decreased hearing bilaterally and subsequent audiologic testing (including a VA examination in March 2006) confirmed significant hearing loss bilaterally. Shortly after his time in service, the veteran was diagnosed with TB and he was treated with the drug streptomycin, which the veteran reports he was given shots of 6 times per day for 26 days. At his hearing before the Board, the veteran testified that he believes his hearing loss was caused by the use of streptomycin to treat his TB; and in support of his claim the veteran submitted a number of articles which described that one of the known side effects of streptomycin is hearing loss. The veteran's private ear doctor also submitted a letter in November 2006 indicating that the veteran had bilateral hearing loss and opining that the hearing loss could partly be due to previous streptomycin treatment. The VA examiner in March 2006 was asked for an opinion as to the etiology of the veteran's bilateral hearing loss and he indicated that the veteran had a complex history related to his ears. The examiner noted the streptomycin treatment, and the exposure to acoustic trauma while in combat. The examiner also indicated that the veteran had a chronic TM perforation in his right ear, and that the veteran's advanced age alone could account for his hearing loss. The examiner concluded that with all these factors involved in the veteran's hearing loss and no audiometric documentation (other than whispered voice tests) prior to, or shortly after, his time in service made it impossible to state to what extent acoustic trauma while he was in the army may or may not have contributed to his current hearing loss. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case it is well-documented that the veteran was exposed to acoustic trauma while in service and that he was administered a known ototoxic agent to treat a service- connected disability. While there are clearly other factors which could have contributed to the veteran's hearing loss, such as age, the VA examiner essentially found that none of these causes were more likely to be the cause of the veteran's bilateral hearing loss than were the service related causes. This is the very definition of equipoise in that neither the evidence supporting service connection, nor the evidence arguing against it, is more likely than the other to be accurate. Because the evidence for and against the veteran's claim is found to be equal; it is considered to be in relative equipoise, and the law mandates that reasonable doubt be resolved in the veteran's favor. Accordingly, the veteran's claim of entitlement to service connection for bilateral hearing loss is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER The veteran's claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs