Citation Nr: 1300317 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-40 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. FINDINGS OF FACT 1. Entitlement to service connection for hearing deficiency was denied by rating decision in January 1970. 2. When considered by itself or in connection with the evidence previously assembled, the evidence received since the January 1970 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. It is at least as likely as not that the Veteran's bilateral hearing loss is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. Evidence added to the record since the January 1970 rating decision is new and material; thus, the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). 2. Resolving doubt in favor of the Veteran, bilateral hearing loss was incurred as a result of his active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The Board believes that the evidence has been developed to the extent necessary to adjudicate the issue decided herein. As will be discussed in greater detail below, the Board finds that new and material evidence has been submitted with respect to the Veteran's claim of entitlement to service connection for bilateral hearing loss, and that the claim is reopened. Additionally, in light of the favorable decision as it relates to the issue of entitlement to service connection for bilateral hearing loss on its merits, any errors by VA in complying with the requirements of VCAA as to this issue are moot. II. New and Material Evidence The Veteran is seeking entitlement to service connection for bilateral hearing loss. He essentially contends that he currently suffers from bilateral hearing loss as a result of combat-related acoustic trauma. Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The 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 (2012). A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 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). For claims filed on and after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). 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 had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim of entitlement to service connection for hearing deficiency was originally denied by the RO in January 1970. This decision cited the absence of a current hearing loss disability. Among the evidence of record at the time of the January 1970 denial were the Veteran's complete service treatment records and an October 1969 VA examination report. The Veteran was notified of this decision in February 1970, and he did not appeal. Since the January 1970 rating decision, the Veteran has submitted new and material evidence sufficient to reopen his claim. In particular, the Board notes a September 2009 VA examination report that reflects the Veteran has hearing loss to a degree that qualifies as a hearing loss disability for VA benefits purposes. This requirement will be discussed in more detail below. This evidence is new in that it was not of record at the time of the January 1970 rating decision. It is material in that it constitutes competent evidence of a current hearing loss disability, a fact that had not been demonstrated at the time of the denial of the Veteran's claim in January 1970. In short, the Board finds that this evidence constitutes new and material evidence in that it is neither cumulative nor redundant of previously submitted evidence, and it appears to raise a reasonable possibility of substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss. To this extent, the benefit sought on appeal is granted. III. Service Connection The Veteran has claimed entitlement to service connection for bilateral hearing loss which, according to his April 2010 notice of disagreement, occurred as a result of acoustic trauma he suffered while serving in combat in Vietnam. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease first 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). Service connection may also be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.' When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service. However, section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The Board acknowledges that the lack of any evidence that a veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Veteran's current bilateral hearing loss disability is confirmed by the September 2009 VA audiological examination report. This report reflects that the Veteran's right ear audiological thresholds were 5, 20, 45, 60, and 55 decibels, for a four-frequency average of 45 decibels. His left ear audiological thresholds were 5, 5, 30, 55, and 60 decibels, for an average of 37.5 decibels. His speech recognition scores in both ears were 96 percent. In terms of in-service noise exposure, the Veteran has reported that he was exposed to loud noise while serving in Vietnam. At his May 2012 Board hearing, the Veteran reported that he served with the 101st Airborne Division, which was attached to an artillery unit, while in Vietnam. He reported frequent exposure to "very large armed fire that created and caused traumatic loud noises," "artillery firing that the unit [he was] attached to performed on a daily basis," and "various large arms and small arms combat flare-ups." During one of those episodes, the Veteran was severely injured after being shot in the chest and was sent back to the United States. He received a Purple Heart for this injury, and is service-connected for the gunshot wound. He reported that he was not given hearing protection during service. The Board notes that the Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was light weapons infantry, and that he received a Combat Infantry Badge and Purple Heart for his service. The Veteran's service treatment records also clearly corroborate the in-service gunshot wound. Thus, the Board finds that the evidence of record supports a presumption of combat under 38 U.S.C.A. § 1154(b) (West 2002). The Board further finds that loud noise exposure is consistent with the circumstances surrounding the Veteran's military service, and the Veteran is competent to describe loud noise exposure. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board therefore finds that the Veteran's reported loud noise exposure is established for purposes of deciding his claim. Such exposure constitutes an injury for the purpose of establishing service connection. In terms of in-service hearing loss, the Veteran denied any past or current hearing loss on his March 1966 entrance and November 1968 separation medical history reports. Given the severity of the Veteran's combat wounds, however, the Board does not find it incredible that the Veteran would have denied any hearing complaints on separation from service. Furthermore, the Board notes that the Veteran's converted audiometry report from his March 1966 entrance examination, while it does not reflect a hearing loss disability for VA purposes, demonstrates diminished hearing as compared to the audiometry reports from separation in November 1968 and from the October 1969 VA examination report. Nonetheless, the Veteran's hearing was noted to be clinically normal upon entrance into service, separation therefrom, and VA audiology testing approximately one year after the separation examination. At his May 2012 Board hearing, the Veteran testified that he had noticed his hearing problems at the time of his discharge from service, and that he applied for VA benefits at that time. (On his August 1969 claim form, he reported that his hearing loss had begun in May 1968. ) He reported that he first noticed hearing difficulties in Vietnam, stating that he had significant left ear problems during one or two of the incidents he was involved in while in Vietnam. He reported that he "couldn't hear for a while at all. It was just a ringing, and then it got a little bit better, but never got 100-percent better." He testified that he worked in construction, building houses, after service. He reported that he was involved in some of the actual work, but that he mostly supervised. He stated that his hearing has "been bad forever," noting that he has long been told that he talks too loudly. He also believes that his hearing has worsened in the past 10 to 15 years. The Board observes that, although the Veteran is a lay person, he is competent to report having experienced difficulty hearing during service or shortly following his separation from service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). These reports of hearing difficulty within the one-year presumptive period corroborate the Veteran's subsequent reports of having experienced hearing loss symptoms since service. The Board finds that there is no reason to doubt the Veteran's credibility in that regard. See Charles v. Principi, 16 Vet. App. 370 (2002). However, in light of the negative VA examination from October 1969, the Veteran's lay contentions cannot establish the presence of a hearing loss disability that has existed continuously since service. Having found evidence of current hearing loss disability and in-service acoustic trauma, the Board will next turn to the question of whether the Veteran's current bilateral hearing loss is etiologically related to service. There are two etiology opinions of record that are pertinent to this claim. The first appears in a September 2009 VA examination report. This report reflects that the claims file and medical records were reviewed. It notes that the Veteran was an infantryman for one year in Vietnam. He worked in construction, as a home builder, with and without hearing protection. He reported no recreational noise exposure. Following examination of the Veteran, the examiner diagnosed sensorineural hearing loss, normal to moderately severe. She noted that the comparison of frequency-specific testing at induction with that obtained at discharge reveals neither the presence of any hearing loss nor a significant worsening of thresholds during that period. She noted that a recent Institute of Medicine (IOM) study supports the long-held view that hearing loss related to noise exposure does not enjoy a delay in onset, nor does it progress once a specific noise source is discontinued. Therefore, she found it unlikely that the Veteran's current hearing loss is related to military service. The other opinion of record was written by the Veteran's treating physician. She described the Veteran's service, noting that he served in a combat zone for at least four months. She stated that heavy arms/artillery exposure occurred at least ten times in the setting of concussions, small arms fire, grenade attacks, and gunshot wound. She noted that the Veteran immediately had difficulty with hearing after some of the aforementioned incidents and that, while hearing improved in the right ear, he continued to have poor hearing in the left ear. Over the past few years, the Veteran has continued to have a steady decline in hearing of both ears, but worse in the left ear. She opined that the Veteran has had multiple oto-traumatic exposures which more likely than not have contributed to hearing loss. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court has expressly declined to adopt a "treating physician rule" which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. See Guerrieri, supra. Having reviewed these etiology opinions, the Board concludes that the evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss disability is related to his in-service acoustic trauma. The Board notes that both of the diagnoses of record were made by individuals who are qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). Slightly more probative weight may be accorded to the VA audiologist's opinion, however, over that of the Veteran's treating physician, who is a general practitioner, because the audiologist presumably possesses specialized knowledge on the specific matter at issue than would be expected from a general practitioner. The Board further notes that both physicians had access to the Veteran's pertinent medical history, as the audiologist noted review of the Veteran's claims file and his treating physician had access to his VA medical records. The Board notes that both physicians interviewed the Veteran, and the Board considers the Veteran's reports of in-service acoustic trauma and his history of having noticed difficulties with his hearing since service to be highly credible. The Board finds it particularly significant that the Veteran complained of hearing difficulties shortly following his separation from service, as documented in his August 1969 VA benefits claim, thus providing a contemporaneous account of hearing loss shortly following his separation from service. Finally, the Board notes that both examiners have provided rationales to support their opinions. The audiologist has cited a recent IOM study refuting the theory of delayed-onset or delayed progression of hearing loss related to acoustic trauma. The Veteran's physician cites specific occurrences of acoustic trauma in the Veteran's medical history, as well as the Veteran's own reports of in-service hearing difficulties. In short, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran has bilateral hearing loss that was incurred as a result of verified in-service acoustic trauma. Therefore, having resolved doubt in favor of the Veteran, the Board concludes that service connection is warranted for bilateral hearing loss, and that the benefit sought on appeal is granted. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102, 3.304(f) (2012). ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs