Citation Nr: 1319592 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 11-06 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from April 1960 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Baltimore, Maryland. The Veteran currently resides within the jurisdiction of the St. Petersburg, Florida VARO. The decision set out below grants the application to reopen the claim for service connection for bilateral hearing loss. The underlying issue for service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a September 2008 rating action, the RO denied the Veteran's initial claim for service connection for bilateral hearing loss; the Veteran was provided notice of the decision and his appellate rights, but did not file a notice of disagreement. 2. In October 2009, the Veteran filed an application to reopen his claim. 3. Additional evidence received since the September 2008 rating action is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2008 rating action, in which the RO denied the Veteran's initial claim for service connection for bilateral hearing loss, is final. 38 U.S.C.A. § 7105 (West 2002). 2. The evidence received since the September 2008 rating action is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board has considered the Veteran's claim to reopen based on new and material evidence with respect to the VCAA. Given the favorable outcome as noted above, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Pertinent Laws and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." ). Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Sensorineural hearing loss is defined as a chronic disease in section 3.309(a). Thus, the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. Sensorineural hearing loss is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Lay evidence nonetheless can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). For purposes of applying the laws administered by VA, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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). It is also pertinent to note that the United States Court of Appeal for Veterans' Claims (Court) has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. III. New and Material Claim The Veteran's original claim of entitlement to service connection for bilateral hearing loss was denied by the RO in a September 2008 rating action. At that time, the RO recognized the Veteran's contention that he experienced noise exposure during service. Specifically, on one occasion in 1960 when the Veteran was standing approximately 25 feet away from a Howitzer gun, it fired. According to the Veteran, following the explosion, he lost his hearing for a day. The Veteran maintained that he currently had bilateral hearing loss that was due to his in-service acoustic trauma. However, the RO stated that there was no evidence of record linking the Veteran's currently diagnosed bilateral hearing loss to his period of active service, to include the 1960 explosion incident. Rather, in an August 2008 VA examination report, the examiner linked the Veteran's bilateral hearing loss to his post-service civilian noise exposure as a plant manager of a steel company for 27 years. The Veteran was provided notice of the decision and of his appellate rights. He did not file a notice of disagreement. Therefore, the September 2008 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2012). Nevertheless, a claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. Because the September 2008 rating action was the last final disallowance, 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 re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured 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 (West 2002). For claims filed on or after August 29, 2001, such as this claim, 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 the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the September 2008 rating action consisted of the Veteran's service treatment records, a private medical statement from A.N.S., Au.D., an audiologist, dated in July 2007, a statement from the Veteran, received in October 2007, a lay statement from Sergeant A.J.O., received in October 2007, and a VA examination report, dated in August 2008. The Veteran's DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, shows that he served in the United States Army from April 1960 to April 1963. The Veteran's Military Occupational Specialty (MOS) was as a Field Communication Crewman. The Veteran's service treatment records are negative for any complaints or findings of bilateral hearing loss. The records show that in January 1963, he underwent a separation examination. At that time, he denied any ear trouble. The Veteran's ears were clinically evaluated as "normal." Audiometric testing showed puretone thresholds (converted from American Standards Association (ASA) to International Standards Organization (ISO)) of 30, 5, 0, and 15 decibels in the right ear, and 20, 0, 0, and -5 decibels in the left ear at 500, 1,000, 2,000, and 4,000 Hz respectively. (ASA values have been converted to ISO standards to facilitate data comparison.) In the July 2007 statement from A.N.S., the private audiologist, she stated that the Veteran was seen for an audiological evaluation in July 2007. The results revealed that the Veteran had a mild sensorineural hearing loss in the low frequencies sloping to a profound sensorineural hearing loss in the high frequencies for both ears. According to the private audiologist, a hearing loss, especially high frequency hearing loss, could occur due to things such as age, head trauma, or noise exposure (i.e., loud music/concerts, factory machinery, power tools, gunfire, or sudden impulse noises such as explosions or firearms). In a statement from the Veteran, received in October 2007, he stated that in 1960, he was stationed at Fort Lewis in Washington and was assigned to B Battery, 29th artillery. At that time, he was assigned to place a communication terminal to six 155 Howitzer guns so that the operators of each weapon could run a wire from their gun to the terminal. According to the Veteran, he had to connect the wires from each weapon to the terminal. On one occasion while installing the wires, the Veteran was standing approximately 25 feet away from one of the guns when it fired. The Veteran indicated that he felt sharp pain in his ears and sought treatment. He reported that he lost his hearing for a day. According to the Veteran, he was not wearing hearing protection at the time of the explosion incident. In a lay statement from Sergeant A.J.O., received in October 2007, Sergeant O. stated that in 1960, he was serving with the Veteran at Fort Lewis. He recalled the explosion incident and stated that when the gun was fired, he had been warned beforehand. However, he noted that the Veteran was unaware the gun was about to be fired and after the explosion, the Veteran was treated for his hearing injury. In August 2008, the Veteran underwent a VA audiological evaluation. At that time, he stated that he was exposed to loud noises from guns and explosions during service. He reported that in 1960, he was standing close to a gun when it was fired. The Veteran indicated that after his discharge, he experienced civilian noise exposure as a plant manager of a steel company for 27 years. The audiological examination revealed that the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows: 40, 35, 70, 85, and 90 decibels, respectively, with a puretone average of 70 decibels. In the left ear for the same frequencies, he had puretone air conduction threshold levels of 40, 35, 70, 90, and 100 decibels, with a puretone average of 74 decibels. Speech discrimination percentages were 92 percent, bilaterally. The examiner interpreted the results as showing mild sloping to profound sensorineural hearing loss, bilaterally. The examiner opined that the Veteran's bilateral hearing loss was just as likely as not caused by his civilian noise exposure of 27 years. Evidence received subsequent to the September 2008 rating action consists of a private medical statement from Y.H.O., M.D., received in October 2009. In the statement, Dr. O. reported that the Veteran's bilateral hearing loss could be from the explosion in 1960. The Board has reviewed the evidence since the September 2008 rating action and has determined that the private medical statement from Dr. O. is new and material. In the statement, Dr. O. essentially linked the Veteran's currently diagnosed bilateral hearing loss to his period of service, specifically to the claimed 1960 explosion incident. This private medical statement supports the Veteran's contention that his currently diagnosed bilateral hearing loss is related to his in-service acoustic trauma, specifically the 1960 explosion incident. A supportive nexus opinion was not previously of record; such evidence raises a possibility of substantiating the service connection claim for bilateral hearing loss. Therefore, in light of the above, the Board finds that new and material evidence has been obtained and that the claim for service connection for bilateral hearing loss is reopened. 38 C.F.R. § 3.156. The Board's decision is strictly limited to the reopening of the claim and does not address the merits of the underlying service connection claim. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss; the appeal is granted to this limited extent only. REMAND In view of the Board's decision above, the Veteran's claim for service connection for bilateral hearing loss must be adjudicated on a de novo basis. In the instant case, it is not in dispute that the Veteran has current bilateral hearing loss. The audiometric findings obtained from the August 2008 VA audiometric examination reflect the required thresholds for a finding of hearing impairment in both ears under 38 C.F.R. § 3.385. The question remains whether there is competent evidence of a nexus between this current bilateral hearing loss disability and service, to include in-service noise exposure. The Veteran's service treatment records are negative for any evidence showing that the Veteran was treated for hearing problems after he was standing close to a gun when it was fired. However, the Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, in light of the Veteran's statements regarding exposure to noise during service, including the 1960 explosion incident, and given that his MOS was as a Field Communication Crewman, the Board finds that the Veteran's statements in regard to his noise exposure credible and consistent with military service. See 38 U.S.C.A. § 1154(b) (West 2002). In light of the above, the Board accepts as true that the 1960 explosion incident happened. Thus, given that the Veteran had in-service noise exposure, and in consideration of the fact that that the Veteran has presented evidence of current bilateral hearing loss for VA purposes, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine the etiology of his bilateral hearing loss. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded an audiological examination for the purpose of determining whether his currently diagnosed bilateral hearing loss began during service or is the result of some incident of active duty, to include exposure to excessive noise and/or the 1960 explosion incident. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished. It is requested that the examiner obtain a detailed history of the Veteran's in-service and post- service noise exposure. After a review of the relevant medical evidence in the claims file, the audiological examination, and any additional tests that are deemed necessary, the examiner must provide an opinion on the following: Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's hearing loss began during service or is etiologically related to any incident of active service, to SPECIFICALLY include the 1960 explosion incident (which the examiner must accept as true) and/or in-service exposure to excessive noise without ear protection? The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion provided. 2. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs