Citation Nr: 1304847 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-50 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to October 1968 and from December 1974 to August 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of a Department of Affairs (VA) Regional Office (RO). The Veteran testified in November 2012 before the undersigned Veterans Law Judge at a Travel Board hearing at the above RO; a transcript is of record. FINDINGS OF FACT 1. Service connection for hearing loss was previously denied in an unappealed January 1998 rating decision, of which the Veteran was notified in February 1998. 2. Some of the evidence added to the record since the January 1998 determination relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. The Veteran credibly reported noise exposure in service while working as an aircraft mechanic and pilot. 4. The evidence is in equipoise as to whether the Veteran's current hearing loss is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The January 1998 rating decision, which denied service connection for hearing loss, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The evidence received since the January 1998 determination is new and material, and the appellant's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for bilateral hearing loss. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett, supra. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A RO originally denied the Veteran's claim for service connection for hearing loss in January 1998 on the basis that there was no evidence that the Veteran currently had hearing loss. The Veteran did not file a notice of disagreement with the January 1998 rating decision and no additional evidence not already of record pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the January 1998 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103, 20.1105 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Board initially acknowledges that a lack of evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ." Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service. The evidence of record at the time of the January 1998 rating decision consisted of the Veteran's service treatment records, the VA examination, hearing tests related to the Veteran's employment, and a statement from the Veteran. The service treatment records include audiogram results that show some degrees of hearing loss, including one from November 1990 that included hearing loss of 50 Hz in the right ear, which meets the standard of hearing loss under 38 C.F.R. § 3.385. Service treatment records from 1989 show that the Veteran had eustachian tube dysfunction after flying. An October 1997 VA audiological examination revealed hearing to be within normal limits at the frequencies of 500 to 4000 Hz and on a speech recognition test. See 38 C.F.R. § 3.385. Audiology examinations dated from July 1994 to June 1997 for the Veteran's employment also indicate a degree of hearing loss that did not meet the standard of 38 C.F.R. § 3.385. The evidence received since the January 1998 decision consists of the report of a VA examination, written statements from the Veteran and others that know him, a statement from a private physician, and testimony provided by the Veteran during a hearing before the undersigned Veteran Law Judge. At a July 2008 VA examination the Veteran reported being a crew chief on a C130 and flying during service. He used earmuffs and inserts for hearing protection, and he denied post-service occupational and recreational noise exposure. The Veteran also denied ear surgery, ear infections, vertigo, head trauma, and a family history of hearing loss. A physical examination was normal. The Veteran reported that his hearing loss began in 1989 when he could not clear his ears during a flight. He was treated with ear drops, and his hearing eventually returned. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 50 45 LEFT 25 30 50 50 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. The examiner diagnosed the Veteran with bilateral high frequency hearing loss. She opined that it was less likely as not that the Veteran's current hearing loss was caused by or a result of his military noise exposure. The rationale was that the 1997 VA examination showed normal hearing loss and that there was no medical evidence to support late onset noise induced hearing loss. June 2008 statements from family members indicate that the Veteran had had difficulty hearing since around 1989, when there was an incident during a flight that affected his hearing. The Veteran wrote in a January 2009 statement that he was an aircraft mechanic during his first period of service and a Naval aviator during his second period of service. He was constantly exposed to acoustic trauma and sustained ear blocks on several occasions. The Veteran believed that his hearing loss was related to military service. In November 2012, a private otolaryngologist who treated the Veteran opined that the Veteran's hearing loss was most likely caused by or a result of military service. The rationale was that during service the Veteran spent three years as an aircraft mechanic and was a Navy pilot for 20 years, which exposed him to loud noises. His audiogram was consistent with high frequency hearing loss, which can be caused by noise exposure. The Veteran testified at the November 2012 hearing that he had no noise exposure before military service. During his service he was an Air Force crew chief who worked on a C130. This included being around the plane while it was running. In the Navy he was a pilot and had noise exposure despite the use of hearing protection. After his military service, the Veteran was a commercial pilot, and he testified that this involved less noise exposure because the engines were further from the cockpit. He said that people close to him noticed his hearing loss around the end of his active service. Upon review of the evidence, the Board finds that some of the evidence submitted subsequent to the January 1998 decision relates to a previously unestablished fact, that is, the existence of hearing loss disability pursuant to 38 C.F.R. § 3.385 and the possible existence of a nexus between the Veteran's current hearing loss and active service. Further, the additional evidence furnishes a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss. Thus, the Board finds that new and material evidence has been received and the claim for service connection for bilateral hearing loss is reopened. Turning to the merits of the claim, the Board notes the Veteran has credibly reported noise exposure and subjective complaints of hearing loss during service. The Veteran's private physician, an otolaryngologist, indicated in a November 2012 statement that the Veteran's current hearing loss is most likely due to noise exposure in service. The VA July 2008 VA examiner felt it was less likely as not that the Veteran's current hearing loss was caused by or a result of his military noise exposure. Both examiners provided a brief rationale for the conclusions reached. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-7 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. In this matter, as there is competent medical evidence both in favor of and against the claim, the Board is of the opinion that this point has been attained. As such, after resolving all doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss is warranted. ORDER New and material evidence having been submitted, the claim for service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs