Citation Nr: 1324140 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-21 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from July 1968 to June 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Virtual VA paperless claims processing system includes electronic copies of VA treatment records dated from September 2009 to November 2011 indicating that the Veteran has chronic bilateral hearing loss for which he requires hearing aids. FINDINGS OF FACT 1. In an August 1998 rating decision, the RO denied service connection for bilateral hearing loss because there was no evidence of a current disability. 2. The Veteran was notified of the August 1998 rating decision and of his appellate rights in September 1998, but he did not submit a notice of disagreement within one year of that notification. There was also no new and material evidence received within that one-year time period. 3. The evidence received since the August 1998 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. 4. The Veteran has been shown to have bilateral hearing loss that is related to his military service CONCLUSIONS OF LAW 1. The August 1998 rating decision that denied the claim for service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). 2. The evidence received subsequent to the August 1998 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In this decision, the Board has reopened and granted the Veteran's claim for service connection for bilateral hearing. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2012). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In the present case, the RO previously considered and denied the Veteran's claim for service connection for bilateral hearing loss in an August 1998 rating decision on the basis that no current hearing loss disability was shown. The Veteran was notified of that decision and of his appellate rights in a letter sent to him in September 1998, but he did not appeal. There was also no evidence received within one year of the issuance of that decision. Therefore, the August 1998 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. As previously noted, the RO had denied the claim in an August 1998 rating decision because there was no evidence of a current disability. Since the time of the August 1998 rating decision, an October 2007 VA examination report has been obtained with audiological results indicating that the Veteran does have current bilateral hearing loss as defined in 38 C.F.R. § 3.385. Therefore, this evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating it. Accordingly, the Board finds that new and material evidence has been submitted to reopen the previously denied claim. The Board finds that there is no prejudice to the appellant by the Board proceeding to address the merits of this claim in this decision. As previously discussed, the Board has granted the claim in the decision below, and thus, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. On audiological testing at the Veteran's June 1968 service entrance examination, puretone thresholds were noted to be 0 (zero) decibels for both ears at 500 Hertz, 1000 Hertz, 2000 Hertz, and 4000 Hertz. Puretone thresholds at 3000 hertz were not measured. The Veteran subsequently served in Vietnam from September 1970 to September 1971. On audiological testing at an August 1972 in-service examination, subsequent to his period of service in Vietnam, puretone thresholds for the left ear were noted to be 15 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, 25 decibels at 4000 Hertz, and 25 decibels at 6000 Hertz. Puretone thresholds for the right ear were noted to be 15 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 25 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz, and 25 decibels at 6000 Hertz. On audiological testing at a November 1972 in-service examination, puretone thresholds for the left ear were noted to be 10 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, 20 decibels at 4000 Hertz, and 25 decibels at 6000 Hertz. Puretone thresholds for the right ear were noted to be 10 decibels at 500 Hertz, 5 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, 15 decibels at 4000 Hertz, and 25 decibels at 6000 Hertz. On audiological testing at the Veteran's March 1974 service discharge examination, puretone thresholds for the left ear were noted to be 10 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 5 decibels at 2000 Hertz, 5 decibels at 3000 Hertz, and 5 decibels at 4000 Hertz. Puretone thresholds for the right ear were noted to be 20 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 5 decibels at 2000 Hertz, 5 decibels at 3000 Hertz, and 5 decibels at 4000 Hertz. Notably, service department records indicate that the Veteran served an in artillery unit during a period of wartime service in Vietnam. The Board finds that the Veteran's contention that he was exposed to acoustic trauma in the form of artillery noise during wartime service in Vietnam is consistent with the circumstances of his military service. See 38 U.S.C.A. § 1154(a) (West 2002). Therefore, his assertions in this regard are competent, credible, and probative. The Board also finds the Veteran's lay assertions that he experienced hearing loss after exposure to acoustic trauma during active service and that he has experienced hearing loss ever since to be competent and credible. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). An August 1983 VA treatment record indicates that the Veteran complained of hearing loss since 1971. The treating clinician also noted that the Veteran served in an artillery unit in Vietnam, and the diagnosis was sensorineural hearing loss. Audiological testing that same day showed mild sensorineural hearing loss bilaterally with good speech recognition. There were also attached, hand-written audiological VA testing results from August 1983 that are not sufficiently legible to determine the measured audiological thresholds. Thus, it is unclear whether the Veteran had hearing loss that met the VA standards under 38 C.F.R. § 3.385. At a VA examination for residuals of Agent Orange exposure, in approximately September 1983, the Veteran was noted to have bilateral hearing loss and to have recently undergone an ear, nose, and throat evaluation at VA. At the October 2007 VA examination, the examiner noted that in-service hearing screenings conducted in 1968, August 1972, and March 1974 were within normal limits. The examiner opined that the Veteran did have hearing damage and that tinnitus due to acoustic trauma during active service; however, he determined that the Veteran's current bilateral hearing loss was not related to acoustic trauma in service because hearing screenings were normal during active service. Nevertheless, the Board notes that the October 2007 VA examiner did not acknowledge the puretone audio thresholds at greater than 20 decibels in both ears in August 1972 and November 1972, after the Veteran's return from Vietnam in September 1971, which reflect that the Veteran experienced some degree of hearing loss during active service upon his return from Vietnam. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988). As a result, the examiner's opinion as to whether the Veteran's hearing loss is a result of acoustic trauma during exposure to acoustic trauma in Vietnam is of a greatly diminished probative value, as it is based on an inaccurate history and an inaccurate premise, and overlooks favorable in-service medical evidence. The Veteran's service discharge examination shows hearing within normal limits, but at worsened audiological thresholds than at entry into service. Further, unexplained is why at discharge from service audiological thresholds were within normal limits, but on two earlier occasions after the Veteran's return from Vietnam audiological testing revealed puretone thresholds that were not within normal limits and reflected some degree of hearing loss. In summary, the Veteran's descriptions of in-service hearing loss after acoustic trauma in Vietnam are competent, credible, and of high probative value. Audiological testing showed some degree of hearing loss during service and after his return from Vietnam, which corroborates his lay statements. A history of hearing loss beginning in Vietnam, as indicated to VA in August 1983, and the VA clinician's impression at that time that the Veteran's had noise-related hearing loss, also support his assertions. In addition, the October 2007 VA examination report shows that the Veteran does have current hearing loss disability and the examiner opined that the Veteran experienced some hearing damage in Vietnam, which provides further evidence in support of the Veteran's claim. Given these factors, the Board finds that the evidence is at least in equipoise to show that the Veteran has bilateral hearing loss that was caused by acoustic trauma during active service. Accordingly, and resolving any remaining doubt in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. Subject to the provisions governing the award of monetary benefits, service connection for bilateral hearing loss is granted. ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs