Citation Nr: 1320268 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-02 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. Whether new and material evidence has been presented 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 Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1960 to April 1962. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran initially filed a claim for service connection for bilateral hearing loss in March 2004 which was denied in a June 2004 rating decision. The Veteran did not file new evidence of a notice of disagreement within one year and the decision became final. The Veteran filed his current claim for hearing loss in September 2009. 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 claims of entitlement to service connection for bilateral hearing loss in a June 2004 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 June 2004 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's bilateral hearing loss. 3. The weight of evidence fails to establish that the Veteran's current bilateral hearing loss either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The June 2004 rating decision, which denied entitlement to service connection for hearing loss, is final; new and material evidence has been submitted, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302 (2012). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran is currently seeking service connection for bilateral hearing loss. The Veteran filed his initial claim for hearing loss in March 2004. His claim was denied in a June 2004 rating decision. The Veteran did not file new evidence or a notice of disagreement within one year, so the determination became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302. However, previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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 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). At the time of the June 2004 rating decision the evidence of record included the Veteran's application for benefits, service treatment records, the report from the Veteran's June 2004 VA examination, VA treatment records, and the report from a private audiological examination in December 1994. His claim was denied for failure to establish that his current hearing loss was related to his military service. In September 2009 the Veteran sought to reopen his previously denied claim for service connection for bilateral hearing loss. Along with his claim the Veteran submitted the medical record from an August 2009 private audiological examination. This evidence was not previously submitted to the VA before the RO's June 2004 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. In the newly submitted private treatment record the physician opined it was "quite likely" that the Veteran's current hearing loss was due to his military noise exposure. As such, this record suggests the Veteran's current bilateral hearing loss may be related to his military service. This evidence is particularly relevant to the issue of reopening as evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). When presumed credible, this evidence suggests the Veteran's current hearing loss may be related to his active duty service. The new evidence is therefore material in that it addresses a requirement of service connection, as well as the reason the Veteran's claim was previously denied, namely that his current condition was not related to his military service. As such, the Veteran's claim is reopened. The Board acknowledges that when the Board reopens a claim, the new and material evidence must first be considered by the RO unless there is a waiver from the Veteran or no prejudice would result from adjudication of this claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, the Board finds the RO has already considered the case on its merits in the October 2009 rating decision and subsequent statements of the case. Therefore, the Board is satisfied that no prejudice will result to the Veteran by the adjudication of this claim. Service Connection 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). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of a 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensioneural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board notes the Veteran has consistently reported he was exposed to loud noise during his military service, which is not in dispute. In a January 2010 military statement he described noise exposure at the rifle range during basic training, as well as the noise of machine gun fire. He also described an event where a tank fired near him. The Veteran reported after his day he was unable to hear anything whispered to him. The Veteran also asserted that no hearing test was administered at his separation examination. The Board finds that as a lay person the Veteran is competent to report what comes to him through his senses, such as exposure to loud noise and hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board finds the Veteran's description of his exposure to acoustic trauma is competent. Furthermore these statements are not contradicted by additional evidence of record. Therefore the Board finds the Veteran was exposed to acoustic trauma during his military service. However, it is not enough to establish military noise exposure, but rather the evidence must establish the Veteran's current hearing loss is related to his military noise exposure. To this end, the Board finds the Veteran's statements regarding his onset of hearing loss during his military service are not supported by the evidence of record. Most notably, contrary to the Veteran's assertions he was provided with hearing test at his separation from military service and, as will be discussed below, this test established the Veteran still had normal hearing acuity at separation. As such, the Board finds the Veteran's lay statements regarding his onset of hearing loss are not supported by the weight of the evidence of record. Service treatment records were reviewed and fail to establish the Veteran made any complaint of, or sought any treatment for, any hearing loss during his active military service. The Veteran was not provided with audiometric testing at this entrance examination in April 1960, however he scored 15 out of 15 on the whispered voice test and his hearing was rated as H-1 under the PULHES physical profile. In his accompanying report of medical history the Veteran himself denied having any ear trouble. At his separation physical in February 1962 audiometric testing was conducted. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 -- 10 LEFT 10 5 5 -- 10 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. The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, the above results of audiometric testing reflecst the Veteran had normal hearing acuity at separation. As such, the Board finds the results from the audiometric testing at the Veteran's separation physical provides probative evidence against the Veteran's claim. In addition, in his February 1962 Report of Medical History the Veteran denied having any ear trouble. As such, service treatment records fail to establish the Veteran developed hearing loss during his military service and provide clear evidence of hearing testing at separation, with detailed results. The Veteran had active military service from April 1960 to April 1962, more than 50 years ago. The earliest post-service treatment records in the claims file are from December 1994. At this time the Veteran reported to a private physician with a complaint of thirty years of hearing loss in both ears. The Veteran described he was exposed to acoustic trauma during his military service. Audiometric testing was performed and the results were reported in graphical form. However, the Court has determined that the Board, as the finder of fact, is able to read clear graphical audiometric reportings, such as this one. Kelly v. Brown, 7 Vet. App. 471 (1995). The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 70 110 -- -- -- LEFT 25 40 65 -- 80 As such, this record establishes that in December 1994, more than thirty years after he separated from military service, the Veteran had hearing loss in both ears. In June 2004 the Veteran was provided with a VA examination. The Veteran reported bilateral hearing loss, worse on the right ear. The Veteran stated his greatest difficulty was hearing in background noise. The Veteran reported his hearing loss was present since he was in the military service. The Veteran also described a history of noise exposure due to machine gun fire, use of air tools, artillery, and small arms fire during his military service. He also described one incident of excessive noise exposure when a tank fired near to his right side. The Veteran also described exposure to noise while working as a civilian farmer, to include the noise of farm equipment, after his military service. The Veteran reported he wore ear protection while farming. 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 30 55 80 105 105 LEFT 35 55 70 105 105 Speech recognition testing was also conducted using the Maryland CNC Test. The Veteran scored a 24% in his right ear and 28% in his left. As such these results establish the Veteran had bilateral hearing loss at this time. Based on the foregoing the examiner opined the Veteran had mild to profound sensorineural hearing loss bilaterally. However, the examiner noted the Veteran's hearing was normal when he was discharged from the military. As such, the examiner opined that is was not likely that his hearing loss was related to his military service. The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this case the examiner specifically noted the Veteran reported his effects were primarily difficulty hearing in background noises, as well as having to turn the television up loud. As such, the Board finds this examination is compliant with the Martinak requirements. In August 2009 the Veteran received audiometric evaluation from a private physician. The physician noted that the Veteran reported he was exposed to noise during his military service which caused a temporary threshold shift and tinnitus at the time. The Veteran reported since his military service he had not been exposure to any significant amount of noise and he used hearing protection when needed. 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 45 65 95 115 120 LEFT 60 70 100 120 120 The physician also noted the Veteran's word recognition scores were 12% in the right ear and 20% in the left ear. Based on the foregoing the physician opined it was "quite likely" the Veteran's military noise exposure caused his hearing loss. He explained the Veteran's type and degree of hearing loss was consistent with noise induced hearing loss. However, the Board finds this private medical opinion was based on an inaccurate factual basis and is therefore not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). First, the evidence of record does not establish the Veteran experienced a temporary threshold shift in hearing acuity during his military service, as reported to the private physician. In addition, the record reflects the Veteran had exposure to a significant amount of noise after his military service in his career as a farmer. As such, the Board finds this opinion is based on inaccurate facts presented to the private physician, and is therefore not probative. Based on the foregoing the Board finds that the evidence of record establishes the Veteran currently has bilateral hearing loss and was exposed to acoustic trauma during his military service and after military service. However, the weight of the evidence of record fails to establish the Veteran's current bilateral hearing loss was due to his military noise exposure. Service treatment records establish the Veteran still had normal hearing acuity at his separation from military service. In addition, the first medical evidence reflecting the Veteran had bilateral hearing loss is from December 1994, more than thirty years after he separated from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). Moreover, in his June 2004 VA examination the Veteran reported additional post-service noise exposure such as farm equipment and tractors during his post-service civilian work as a farmer. This would have occurred for many more years than the Veteran was in the military, making it more likely to be the cause of the problem. Additionally, the report from the VA examiner found the Veteran's current hearing loss was less likely than not due to his military noise exposure. The Board notes the Veteran's private physician opined his hearing loss was due to his military noise exposure, but as discussed above the Board finds this report was based on inaccurate facts and as such is not probative. It is important for the Veteran to understand that the Board routinely takes the opinion of a private medical provider over the opinion of a VA medical provider, giving the veterans the benefit of the doubt. However, in this case, the post-service noise exposure, the VA medical opinion, and the service examination results at discharge, overall, make it less likely that the current problem the Veteran has is the result of the Veteran's service from 50 years ago and outweigh the Veteran's statements and the medical opinion of the private opinion, which has been fully considered. Therefore, the weight of the evidence of record fails to establish the Veteran's current bilateral hearing loss began during, or was otherwise caused by, his military service. As such, his claim for service connection is denied. 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, required notice was provided by a letter dated in 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 the requirements of the Kent court. 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). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. 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 June 2004 rating decision regarding the claim of service connection for bilateral hearing loss is reopened. The Veteran's claim for service connection for bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs