Citation Nr: 1307250 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 11-19 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1956. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. Service connection for bilateral hearing loss was denied by an August 2004 rating decision. The Veteran did not perfect an appeal of that rating decision, and it is final. 2. Evidence associated with the claims file since the unappealed August 2004 rating decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 3. The Veteran's current bilateral hearing loss is related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the August 2004 rating decision, and the Veteran's claim for 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 (2012). 2. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues involving the Veteran's claim to reopen the issue of entitlement to service connection for bilateral hearing loss and entitlement to service connection for bilateral hearing loss. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting the claim to reopen, as well as granting the claim of entitlement to service connection for bilateral hearing loss. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). New and Material Evidence to Reopen Claim The Veteran contends that he has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for bilateral hearing loss. In an August 2004 rating decision, the RO denied service connection for bilateral hearing loss because the evidence did not show a relationship between the Veteran's bilateral hearing loss and his active service. The Veteran did not appeal the August 2004 rating decision, and it is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2012). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the August 2004 rating decision is the last final disallowance with regard to the Veteran's claim, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and readjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156 (a). In August 2008, the Veteran filed the present claim to reopen the issue of entitlement to service connection for bilateral hearing loss. In a March 2009 rating decision, the RO denied the Veteran's claim to reopen, and noted that new and material evidence had not been presented. In July 2009, the Veteran filed a notice of disagreement. In a September 2009 rating decision, the RO again denied the Veteran's claim to reopen, and noted that new and material evidence had not been presented. In a May 2011 statement of the case, the RO reopened the Veteran's claim of entitlement to service connection for bilateral hearing loss, but denied service connection on the merits, finding that the evidence was not sufficient to establish a relationship between his bilateral hearing loss and service. In June 2011, the Veteran perfected his appeal. Although the RO determined that new and material evidence was presented to reopen the claim of entitlement to service connection for bilateral hearing loss, this decision is not binding on the Board. Regardless of what the RO has done in this case, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7105. Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett, 83 F.3d at 1384; McGinnis v. Brown, 4 Vet. App. 239 (1993) (finding that Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. Comparing the evidence received since the August 2004 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for bilateral hearing loss. At the time of the August 2004 rating decision, the evidence of record consisted of the Veteran's service treatment records, private treatment records, VA outpatient treatment records, lay statements, a VA examination report, a report of contact, and the Veteran's statement. The Veteran's statement indicates that the onset of his hearing loss was in 1954, and has continued since such time. Service treatment records include the report of a March 1956 separation examination, which demonstrates 15/15 on whispered voice test. The post-service private and VA outpatient treatment records note mild to moderate sensorineural hearing loss diagnoses. Lay statements include a statement from P.V., a friend who has known the Veteran since 1956, who reported that the Veteran complained of bilateral hearing loss, which the Veteran believed was a result of his service. However, the only medical evidence of record addressing the etiology of the Veteran's bilateral hearing loss disability was a July 2004 VA examination, in which the examiner found that it was difficult to ascribe the Veteran's hearing loss event partially to his service, and in an August 2004 report of contact, concluded that such disability was not related to the Veteran's service. Thus, at the time of the August 2004 rating decision, there was no medical evidence of record linking the Veteran's current bilateral hearing loss to his active duty service. Since the August 2004 rating decision, new evidence has been received, including private treatment records, a VA examination, a letter from the Veteran's private physician, an article regarding veterans and hearing loss, lay statements, and statements from the Veteran. In particular, the Veteran submitted a December 2012 letter from G.S., M.D., which provided an opinion that "it is at least as likely as not that the Veteran's current hearing loss is due to his chronic exposure to loud engine noise driving cargo trucks while on active duty. It has already been established that his persistent tinnitus is also due to the same chronic noise exposure." The private medical opinion letter linking the Veteran's bilateral hearing loss to service is new evidence because it was not of record at the time of the August 2004 rating decision. In addition, it is material, as it raises a reasonable possibility of substantiating the Veteran's claim for service connection. The Veteran's claim was denied in August 2004 because there was no evidence linking bilateral hearing loss to acoustic trauma during service. The December 2012 private letter from Dr. G.S. indicates that the Veteran's bilateral hearing loss is the result of his active duty service. As this evidence raises a reasonable possibility of substantiating the Veteran's claim, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen his claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Hearing impairment is considered to be a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 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 CFR § 3.385. The requirements for service connection for hearing loss need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. A claimant is not prevented from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet App. 87, 89 (1992). Service connection is not precluded simply because the regulation's requirements were first met after service. Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss disability had its onset during service due to noise exposure. Specifically, throughout the record and during a January 2013 hearing before the Board, the Veteran asserts that his hearing loss began during his service in Korea as a result of his duties, which included driving a two ton cargo truck for 16 months in 1953 through 1954. In this regard, the Veteran's Form DD 214 shows his assignment to the 504th Transit Truck Company, as well as demonstrates that he received the Korean Service Medal. The Veteran's service treatment records include the report of a March 1956 separation physical examination, which was negative for complaints, treatment, or a diagnosis of any kind of hearing disorder. The examination report demonstrates that the Veteran's hearing bilaterally was evaluated as normal upon discharge from service, as shown by the results of the whispered voice test, which reveals 15/15. The Veteran was afforded a VA examination in July 2004, during which he reported a history of military noise exposure due his service in Korea, to include artillery explosions. He denied any post-service occupational or recreational noise exposure. Upon examination and review of the Veteran's claims file, the examiner diagnosed high frequency hearing loss. The examiner opined that it was difficult to ascribe the Veteran's current bilateral hearing loss event partially to his service, and in an August 2004 report of contact, concluded that such disability was not related to the Veteran's service. The examiner did not provide a rationale for the opinion offered. The examiner, however, found that the Veteran's tinnitus was related to his service. The Veteran was afforded a VA examination in October 2008, during which he reported a history of military noise exposure due his service in Korea, to include artillery fire and truck noise. He denied any post-service occupational or recreational noise exposure. Upon examination and review of the Veteran's claims file, the examiner diagnosed sensorineural bilateral hearing loss. The examiner opined that the Veteran's current hearing loss was "less likely than not" caused by or a result of his military service. In providing the opinion, the examiner noted that the Veteran's hearing was better than most other veterans in his age group who were exposed to excessive noise in service. In an April 2010 statement, R.S., a fellow serviceman reported that knew the Veteran since 1954, when they both served in Korea. R.S. indicated that he and the Veteran were assigned to the 504th Truck Company, and both drove two and a half ton cargo trucks all day and night, hauling supplies. R.S. further reported that he and the Veteran lived in the same barracks. R.S. reported that he remembered that the Veteran complained that he could not hear well during service, and that when he talked to the Veteran at such time, the Veteran constantly said, "what-Huh?" A private treatment record and opinion letter from Dr. G.S. dated in December 2012, noted that the Veteran was a 79 year old male who reported chronic severe loud noise exposure while in service during the Korean War, in 1953 through 1954, due to driving cargo trucks without the use of hearing protection. G.S. indicated that the Veteran reported persistent tinnitus and progressive hearing difficulty since service. G.S indicated that the hearing test performed showed mild to moderately severe sensorineural bilateral hearing loss, which had worsened compared to a hearing test performed on January 14, 2004, which showed mild high frequency sensorineural bilateral hearing loss, slightly worse on the left side. Dr. G.S. opined that it was "at least as likely as not" that the Veteran's hearing loss was due to his chronic exposure to loud engine noise from driving cargo trucks while on active duty. Dr. G.S. concluded that it had already been established that the Veteran's persistent tinnitus was also due to the same chronic noise exposure. The December 2012 private opinion letter and the accompanying audiometric evaluation from Dr. G.S. indicate a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Dr. G.S. noted the Veteran's past history of noise exposure in service, and provided a detailed description of the Veteran's military occupational specialty in service when his hearing loss began, as the Veteran was involved in driving cargo trucks in Korea, without the use of hearing protection. Dr. G.S. further compared the hearing evaluation he performed to one contained within the claims file, and indicated that the test he performed showed that the Veteran's bilateral hearing loss had worsened since the previous evaluation dated in January 2004. In addition, G.S. noted that the etiology of the Veteran's tinnitus had already been established as also due to the same chronic noise exposure the Veteran experienced during service. The opinion of Dr. G.S. is based upon an accurate assessment of the Veteran's assignment during service, as the Veteran's Form DD 214 shows he was assigned to the 504th Transit Truck Company. The opinion considered the Veteran's lay statements regarding his exposure to noise during service. Further, the opinion included an explanation of the medical principles that support the opinion that the Veteran's current hearing loss is the result of noise exposure during his service, noting that the Veteran's service-connected tinnitus was also due to the same chronic noise exposure. The July 2004 VA examiner offered a negative opinion, indicating that the Veteran's current bilateral hearing loss disability loss was not related to his service; however, the examiner failed to provide any rationale for such opinion. Moreover, the examiner failed to acknowledge the lay assertions of record regarding the Veteran's in-service noise exposure, and the lack of post-service occupational and recreational noise exposure. Accordingly, the July 2004 VA examination report is of no probative value. The October 2008 VA examiner found that the Veteran's bilateral hearing loss disability was "less likely than not" caused by or a result of his military service. In providing the opinion, the examiner noted that the Veteran's hearing was better than most other veterans in his age group who were exposed to excessive noise in service, but did not discuss how that conclusion was reached. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. Nieves -Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). Therefore, the Board finds the October 2008 VA examination report of no probative value. The Board finds the December 2012 private opinion from Dr. G.S. highly probative evidence. The opinion included a rationale and discussion of the medical principles underlying the opinion, and considered the Veteran's reported medical history. Moreover, the history the Veteran provided about noise exposure in service, where he was exposed to noise from serving as a truck driver, is consistent, competent, and credible. See Jandreau, 492 F.3d at 1376-77. Accordingly, service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received; the claim for entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs