Citation Nr: 1322600 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-31 755A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted in order 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 Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from February to August 1960. This matter is on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. FINDINGS OF FACT 1. In a March 1962 rating decision, the claim of entitlement to service connection for bilateral hearing loss was denied on the basis that it was not shown in service and was not currently shown. 2. The evidence added to the record since the March 1962 decision became final, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for bilateral hearing loss. 3. It is at least as likely as not that the Veteran's current bilateral hearing loss is related to the noise exposure incurred during active duty service. CONCLUSIONS OF LAW 1. The March 1962 rating decision that denied the Veteran's claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received subsequent to the March 1962 rating decision is new and material, and the requirements to reopen the claim for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012). 3. Bilateral hearing loss is attributable to active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as existing 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. However, 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). If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless "patently incredible." See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case the Veteran is claiming entitlement to service connection for bilateral hearing loss. This claim was previously denied by the RO in March 1962 on the basis that hearing loss for VA purposes was not present during service, nor was it shown since he left active duty. He did not appeal that decision, nor did he submit any new and material evidence within a year of the March 1962 rating decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. Based on the evidence obtained since the last final denial of this claim, the Board determines that it should be reopened. Specifically, the evidence of record now includes an April 2010 opinion provided by a private physician who noted that the Veteran has a history of "excessive noise exposure," and it was this physician's opinion that the Veteran's hearing loss was secondary to the acoustic trauma he was exposed to in service. Not only is this evidence "new" in that it was not reviewed by the RO prior to the last final denial, but it is also "material," as it relates to an unestablished fact necessary to support service connection. Although the April 2010 opinion is sufficient by itself to warrant reopening of the claim, the evidence of record also includes a VA examination report from April 2010. On that occasion, the examiner diagnosed sensorineural hearing loss, and provided the opinion that it was at least as likely as not that the Veteran's hearing loss was attributable to his in-service noise exposure. As was the case with the private physician's statement, not only is this evidence "new" in that it was not reviewed by the RO prior to the last final denial, but it is also "material," as it relates to an unestablished fact necessary to support service connection. Therefore, as new and material evidence related to the issue of entitlement to service connection for bilateral hearing loss has been submitted, the Board concludes that it should be reopened. Moreover, as VA's duty to assist has been triggered in considering these claims, this includes undertaking any further necessary development. See Shade, 24 Vet. App. at 110. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The United States Court of Appeals for the Federal Circuit has recently held that service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). However, sensorineural hearing loss is considered an "organic disease of the nervous system," which is considered a chronic disease under 38 C.F.R. § 3.309(a), and may be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, as a chronic disease, service connection will also be presumed, if the evidence indicates that it was manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran is claiming entitlement to service connection for bilateral hearing loss which, according to his statements at his hearing before the Board in March 2011, he asserts is related to his use of hand-held firearms and various other high explosive weapons while serving in the Marine Corps. Since that time, he has experienced difficulty hearing other people, specifically when trying to understand what they were saying. His spouse also stated that the Veteran has had continued difficulty hearing since 1962. After a review of the relevant evidence of record, the Board determines that service connection should be granted. As an initial matter, the service treatment records are notable for an episode in July 1960, where he complained of "ear trouble," and it was noted that he had been exposed to acoustic trauma, although the specific nature of this acoustic trauma was not mentioned. While it is true that his separation physical examination in July 1960 indicated that his hearing was normal, this was based on a whispered voice test. The Board takes notice of the fact that many physicians have considered the whispered voice test to be unreliable and not necessarily representative of a veteran's actual hearing acuity. The post-service treatment records appear to be slightly inconsistent as to the nature and etiology of the Veteran's hearing loss symptoms. Specifically, a private audiological evaluation in August 1961 observed that he was experiencing "perceptive deafness" in his left ear, and the evaluating physician for this examination also indicated that his hearing loss was consistent with the acoustic trauma he experienced in service. However, while a concurrent Marine Corps Reserve physical examination declared him not physically qualified due to his hearing disorder, it also indicated normal hearing based on a whispered voice test. This inconsistency in the Marine Corps examination is not explained. The results of a March 1962 VA examination were largely consistent with the August 1961 private evaluation. On this occasion, the Veteran's hearing was substantially normal in the right ear and, although it was elevated at the higher frequencies in the left ear, it was insufficient to establish hearing loss for VA purposes. Even when converting the tonal thresholds from the American Standards Association (ASA) to the standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI), as is required for service department audiometric readings prior to October 31, 1967, the converted tonal thresholds in the left ear would be only 20, 30 and 35 dB for 1000, 2000 and 4000 Hz, and no tonal thresholds in the right ear would have been in excess of 20 dB. As such, while these tonal thresholds may potentially represent abnormal hearing, impaired hearing for VA purposes under 38 C.F.R. § 3.385 was not shown on this occasion. In fact, the first occasion where hearing loss was established for VA purposes was not until an outpatient audiological evaluation in February 2009 where the Veteran's speech discrimination scores were only 88 and 52 percent in the right and left ear respectively. As such, bilateral hearing loss for VA purposes has been established based on diminished speech recognition scores since February 2009. More recently, the Veteran underwent a private evaluation in April 2010, where he complained of hearing loss without episodes of vertigo and dizziness. After an audiological examination, this physician diagnosed asymmetric hearing loss that was, in his opinion, secondary to the acoustic trauma he sustained while serving in the military. That same month, the Veteran also underwent a VA examination that was specifically directed toward his hearing disorder symptoms. On that occasion, he stated that he has difficulty in sound localization, which is worse in environments with conflicting noise. An audiometric examination indicated tonal thresholds of 45 dB or greater at all frequencies in the left ear. While no tonal thresholds were in excess of 25 dB in the right ear, hearing loss for purposes of 38 C.F.R. § 3.385 was nevertheless established based on his speech recognition scores of 90 and 46 percent in the right and left ears, respectively. Upon completion of the examination, the examiner diagnosed sensorineural hearing loss, and provided the opinion that it was at least as likely as not that this hearing loss was related to his active duty service. In providing this opinion, the examiner pointed out that whispered voice testing was inherently insensitive, and gave high probative value to the Veteran's consistent reports of hearing loss and acoustic trauma. The Board notes the RO's reliance on the 1962 VA examination in denying this claim. However, these conclusions are outweighed by the observations by the private physician in April 2010 and, more significantly, the conclusions of the VA examiner that same month. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a thorough audiological examination. Moreover, there is no indication that the VA examiner did not consider the 1962 VA examination when concluding that the Veteran's current disorder was related to active duty. Additionally, although the Marine Corps Reserve examination in 1961 indicated normal hearing on whispered voice testing, the Board is inclined to discount these findings, given that the private physician diagnosis that same month was based on pure tone threshold testing, which is inherently more accurate than a whispered voice test. Finally, the Board has also found that the Veteran's statements have been consistent and credible regarding the symptoms he has experienced since active duty. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)) (lay evidence can be competent and sufficient to establish a diagnosis of a condition under certain situations, such as when his or her lay testimony describes symptoms which support a later diagnosis by a medical professional). In light of the above discussion, the Board concludes that the weight of the evidence supports granting service connection for this claim. At the very least, the evidence is in equipoise. As such, service connection is warranted, and the appeal is granted. ORDER New and material evidence having been submitted, the application to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss is granted, and the claim is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs