Citation Nr: 1323043 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-35 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 to January 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled for a Board videoconference hearing at the Montgomery RO in October 2011. Notice of the hearing was mailed to the Veteran in August 2011. The Veteran did not appear at the scheduled hearing and did not provide a cause for his failure to appear. To date, VA has not received any request from the Veteran to reschedule his October 2011 Board hearing. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). In January 2012 and January 2013, the Board remanded the case to the RO. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). In the April 2013 supplemental statement of the case, the RO found new and material evidence had been submitted, reopened the claim, but denied the claim for bilateral hearing loss on the merits and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. The claim for service connection for bilateral hearing loss was initially denied in an unappealed March 1997 rating decision. 2. The evidence received since the March 1997 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. Affording the Veteran the benefit of the doubt, the currently diagnosed bilateral hearing loss is related to military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Prior Board Remands The Board observes that this case was previously remanded in January 2012 and January 2013. The purpose of the January 2012 remand was to issue appropriate notice to the Veteran regarding his claim to reopen and new and material evidence. An updated notice letter was sent to the Veteran in February 2012. However, the notice identified the incorrect original rating decision. Thus, in January 2013, the case was remanded by the Board in order to issue a corrected notice letter. The record shows the RO sent the Veteran notice letters in February 2013 and March 2013 that discussed his claim to reopen, explained new and material evidence and identified the correct original rating decision date. It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. New and Material Evidence The Veteran's claim for entitlement to service connection for hearing loss was initially denied in a March 1997 rating decision. The RO held there was no evidence showing hearing loss during service or at the time of separation from service. See Rating Decision, March 1997. Specifically, the RO found the Veteran's medical examination at the time of his separation from service indicated no hearing loss. Id. The Veteran did not appeal the March 1997 denial of the claim and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence of record as of the March 1997 RO rating decision consisted of the Veteran's service treatment records (STRs), including his January 1997 separation examination and report of medical history and his statement that hearing loss began during service. See Veteran's Statement in Support of Claim, January 1997. New evidence received since the March 1997 denial of the Veteran's claim includes the Veteran's June 2007 statement that his current hearing loss began in service, April 2013 statement that during his time in-service he was an engineer and electrician and worked around a lot of generator noise and diesel motors and an April 2013 VA examination, finding the Veteran has current hearing loss for VA purposes. See 38 C.F.R. § 3.385. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Thus, the Veteran's lay statements regarding his in-service exposure to acoustic trauma and hearing difficulties since service are presumed credible. The above evidence received since March 1997 is new as it was not previously considered and is also material as it relates to previously unestablished facts: the exposure of the Veteran to acoustic trauma in-service, continuity of hearing difficulties since service, and a medical opinion finding the Veteran has current bilateral hearing loss for VA purposes. Additionally, this new evidence is also material as it raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that the language of 38 C.F.R. § 3.156(a) ". . . suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering other evidence of record, raises a reasonable possibility of substantiating the claim."). New and material evidence has therefore been received and reopening of the claim for entitlement to service connection for bilateral hearing loss is warranted. III. Service Connection In general, in order to prevail on the issue of service connection 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). Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A claimant may rely on lay evidence "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). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced difficulty hearing. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims his bilateral hearing loss began during service, where he served as an engineer and electrician and was routinely exposed to noise trauma, with ear protection, from generators and diesel motors. See VA Audiological Examination, April 2013. Post-service, the Veteran worked as a boat captain and chef. Id. The Veteran's STRs document that the Veteran had duty in hazardous noise areas. See Reference Audiogram, August 1994. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Exposure to acoustic trauma in-service is conceded. His service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's May 1994 entrance examination noted his ears were normal and that he had normal hearing. Upon his January 1997 separation examination, the Veteran's ears still did not meet VA's standard for a hearing loss disability, although a comparison of the entry and discharge audiograms strongly suggest that an upward shifting of hearing thresholds in both ears occurred during active service. An April 2013 VA audiogram shows that the Veteran's bilateral hearing loss currently meets VA's disability requirements. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran has consistently claimed that he experienced hearing loss during service. See Veteran's Statement in Support of Claim, January 1997; see also Veteran's Application for Compensation and/or Pension, June 2007. The Veteran's statement concerning noise exposure during service is credible as it is consistent with his service record and acoustic trauma in-service has been conceded. See VA Examination, April 2013. The Veteran's lay statements of experiencing hearing loss since service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of his hearing loss since service. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. The Board concludes that the lay evidence provides a medically sound basis to attribute the current hearing loss to noise exposure in service. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner, which was based, in part, on the fact that the Veteran's hearing was normal upon discharge. The VA examiner's opinion did not consider that VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 160. Additionally, the examiner failed to consider the Veteran's credible statements that he experienced hearing loss in-service and did not take into account the Veteran's in-service exposure to acoustic trauma. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Therefore, the VA examination has limited probative value. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability; that he was exposed to acoustic trauma in service; that during service he experienced an upward shift, showing a decline in hearing ability; and that he has experienced hearing loss since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). The VA has statutory duties 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). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. ORDER New and material evidence having been submitted, reopening of the claim for entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs