Citation Nr: 1318202 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-22 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for left ear hearing loss. 2. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from January 1972 through April 1998. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The RO denied the Veteran's claim for entitlement to service connection for bilateral hearing loss in a May 1998 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 2. Evidence obtained since the time of the May 1998 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss in the Veteran's left ear. 3. The weight of the evidence establishes that the Veteran currently has hearing loss in his right ear which either began during, or was otherwise caused by, his military service, to include any noise exposure therein. CONCLUSIONS OF LAW 1. The May 1998 rating decision which denied entitlement to service connection for the Veteran's bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). 2. In regards to the Veteran's claim for hearing loss in his left ear, new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran submitted new and material evidence regarding his claim for service connection for hearing loss in his right ear, and the criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 5108 (West 2002); 38 C.F.R. §§ 3.165, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's initial claim for entitlement to service connection for bilateral hearing loss was denied by a May 1998 rating decision. The Veteran did not file any new evidence or file a notice of disagreement within one year and the decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). New evidence is defined as evidence not previously submitted to agency decision makers. 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen this claim. At the time of the May 1998 rating decision, the evidence of record included service treatment records, the report from a November 1997 VA audio examination, and the Veteran's written application. The RO denied the Veteran's claim for failure to establish a current disability for VA purposes. In August 2007 the Veteran sought to reopen his previously denied claim for service connection for bilateral hearing loss. During the course of the appeal the Veteran submitted new evidence including treatment records from Michael O'Callaghan Federal Hospital and Great Lakes Naval Hospital from September 1998 through November 2005, VA treatment records from March 2006 to December 2009, an October 2008 written statement from his VA primary care physician, the report from a March 2009 VA examination, and several statements submitted by the Veteran. This evidence was not previously submitted to the VA before the RO's May 1998 decision and is therefore "new." The Board will now turn to a discussion of whether this new evidence is "material". The Board is aware 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it 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. Moreover, the Court of Appeals for Veterans Claims (Court) explained this standard is intended to be a low threshold. Id. As discussed above the Veteran's claim was previously denied for failure to establish a current disability. As such, if the new evidence is able to raise a reasonable possibility of substantiating that the Veteran's currently has a hearing loss disability for VA purposes the evidence will be considered material. The new evidence submitted with the Veteran's claim to reopen includes the results from his VA audiology consult in June 2007. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 35 LEFT 5 10 5 25 5 Additional speech discrimination testing was performed and the Veteran scored 92% in the right ear and 96% in the left ear. Under the regulations hearing impairment constitutes a disability for VA purposes when 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. As such, the Board finds this June 2007 audiology consult provides evidence that the Veteran had hearing loss for VA purposes in his right ear at the time, based on speech recognition scores. This new evidence addresses a requirement of service connection that was previously denied, the failure to establish a current disability. Therefore this new evidence is material. As such, the Veteran has submitted new and material evidence and his claim for service connection for hearing loss in his right ear is reopened. The Veteran's claim for service connection for hearing loss in his right ear will be addressed below. However, the Board notes this evidence fails to establish the Veteran currently had hearing loss for VA purposes in his left ear. Neither the audiometric testing nor the speech recognition scores established the Veteran had a hearing disability for VA purposes under § 3.385 in his left ear. As such, this new evidence is not material evidence in regards to hearing loss in the Veteran's left ear. The Board finds the weight of the new evidence submitted in the current claim fails to establish the Veteran currently has hearing loss in his left ear. In June 2007 the Veteran was treated by a VA audiology consult. Unfortunately the results from the audiometric testing are not available for Board to review. However, the physician opined the Veteran had normal hearing in his left ear, and speech discrimination score was 96%, providing evidence against the Veteran's claim. In October 2008 the Veteran's primary care physician submitted a written statement asserting that the Veteran's hearing loss was probably related to his exposure to loud noise during military service (a point that is really not at issue with the Board, if the Veteran has hearing loss the Board would assume such hearing loss is the result of noise exposure in service based on the Veteran's honorable service). However, the Board finds this letter does not address the Veteran's degree of current hearing loss, or whether he has any hearing loss in his left ear. As such, the Board finds this evidence does not establish the Veteran currently had hearing loss in his left ear for VA purposes at that time. In March 2009 the Veteran was provided with a VA examination for his hearing acuity. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 25 LEFT 5 5 5 15 15 Speech recognition testing was also performed, and the Veteran scored 100 percent in both ears. As such, the Board finds the results of this VA examination reflect the Veteran did not have hearing loss disability for VA purposes in either ear. 38 C.F.R. § 3.385. This provides additional evidence against the Veteran's claim to reopen hearing loss for his left ear. The Board notes the new evidence also contains several written lay statements the Veteran submitted directly to the VA stating that he experienced bilateral hearing loss. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board notes that in July 2007 the Veteran reported to his VA nurse that he had hearing loss in his right ear, and did not describe any hearing loss in his left ear. Therefore the Veteran's own statement provides evidence against his claim for hearing loss in his left ear. Additionally, the Court has held that the Board may assign more probative value to lay statements made for treatment purposes than subsequent statements made for compensation purposes. As such, the Board finds the weight of the Veteran's lay statements fail to establish he currently has a hearing loss disability for VA purposes in his left ear. As such, the Board finds that the new evidence submitted since the May 1998 denial does not establish the requirement of service connection that was previously denied in regards to the Veteran's left ear. That is, the evidence does not establish the Veteran has a current hearing loss disability for VA purposes in his left ear. As such, the newly submitted evidence is not material in regards to his left ear and does not reasonable result in substantiation of the claim under Shade. The Veteran's claim for service connection for hearing loss in his left ear is therefore not reopened. Service Connection for Hearing Loss in Right Ear 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. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As discussed above, the Board finds the newly submitted evidence from June 2007 establishes the Veteran had hearing loss for VA purposes in his right ear. The Board does note that the subsequent results from the March 2009 VA exam, discussed above, do not establish the Veteran had hearing loss for VA purposes in his right ear at that time. However, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, notwithstanding the determination of the VA examiner, the Board finds the Veteran is shown to have a current hearing loss disability in his right ear. The Board will now turn to a discussion of whether the Veteran's current right ear disability is related to his active military service. The Veteran served in the Navy for more than twenty-five years. During this time he served as a maintenance tech and frequently worked along the flight lines. As such, the Board concedes the Veteran was exposed to loud noise during his military service, such as from jet engines. See 38 U.S.C. § 1154(a). The fact that the Veteran was exposed to very loud noise during his service is not at issue. The Board has also reviewed and considered all the Veteran's service treatment records, including the numerous audiograms conducted during his more than twenty-five years of service. The Board notes that the results of several audiograms performed during military service reflect the Veteran had normal hearing in his right ear. However, the Board also notes the results of the May 1974 audiogram reflect he had hearing loss in his right ear at that time. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 5 40 15 5 5 LEFT 5 5 5 10 5 As discussed above, under the regulations hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. Therefore, the results of this audiogram establish the Veteran had hearing loss for VA purposes in May 1974, during his active military service. The Board notes the hearing acuity of the Veteran's right ear appears to have fluctuated throughout his active military service, as well as the period on appeal. However, the evidence establishes that the Veteran was exposed to loud noise during his military service, experienced hearing loss for VA purposes in his right ear during his military service, and currently has a hearing loss disability for VA purposes in his right ear. In addition, the regulations provide that all reasonable doubt shall be resolved in the Veteran's favor. 38 C.F.R. § 3.102. As such, the Veteran's claim for service connection for right ear hearing loss is granted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Additionally, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the present case, all the required notice was provided by a letter dated September 2009 which informed the Veteran of all the elements required by the Pelegrini II court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established, as well as provided the required Kent notice for the Veteran's claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and post-service VA treatment records have been obtained, and the Veteran has not indicated he received any private treatment. Although the Veteran initially requested a hearing before the Board, the record reflects the Veteran withdrew his request. 38 C.F.R. § 20.704(e). The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service connection for left ear hearing loss is not reopened. The Veteran's claim for service connection for right ear hearing loss is reopened and granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs