Citation Nr: 1324203 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 12-35 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to special monthly compensation based on aid and attendance/housebound benefit. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse; B.N. and J.T., observers. ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1948 to August 1955. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). A Board videoconference hearing was held before the undersigned in June 2013. A transcript of the hearing is of record. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a June 2013 statement, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal regarding entitlement to special monthly compensation based on aid and attendance/housebound benefit. 2. In a final November 2010 rating decision, the RO denied entitlement to service connection for bilateral hearing loss. 3. Evidence received since the final November 2010 RO decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. 4. There is competent medical evidence of record that shows that the Veteran's bilateral sensorineural hearing loss is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's Substantive Appeal regarding entitlement to special monthly compensation based on aid and attendance/housebound benefit have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The November 2010 rating decision that denied the Veteran's claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. The criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Special Monthly Compensation In a June 2013 written statement, the Veteran indicated that he wished to withdraw his claim pertaining to special monthly compensation. He reiterated this sentiment at his June 2013 hearing. See Board Hearing Tr. at 3; VA Form 21-4138, received June 4, 2013. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). The Veteran has properly withdrawn his appeal pertaining to special monthly compensation. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. II. Veterans Claim Assistance Act of 2000 As the Board's decision to reopen and grant the Veteran's claim of entitlement to service connection for bilateral hearing loss is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. III. Hearing Loss-New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO 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 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran suffers from bilateral hearing loss, which he contends had its onset in service. His claim of entitlement to service connection for such was initially denied in a February 1979 rating decision. After several more attempts to substantiate his claim through the submission of additional statements and evidence, the RO issued the last final denial in November 2010. At such time, the RO considered the Veteran's available service records (a majority of which were destroyed by fire), which consisted of a log showing the Veteran was seen on sick call for an unspecified illness and his DD Form 214. Also before the RO was a January 1979 VA examination during which the Veteran reported in-service noise exposure during combat training, stating that his hearing loss had its onset at that time. The examiner diagnosed the Veteran with bilateral mixed hearing loss and probable otosclerosis. The Veteran also submitted VA treatment records, dated March 1979 through March 1980 reflecting treatment for the Veteran's bilateral hearing loss, including a 1979 left ear stapendectomy. A statement from the Veteran's step-father, indicating that the Veteran did not have hearing loss prior to service, was also submitted. The RO denied the Veteran's claim on the basis that the Veteran's bilateral hearing loss was not shown to be related to his service. In December 1980, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for bilateral hearing loss was received until February 1990, when VA received his application to reopen such claim. Therefore, the December 1980 rating decision is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1980) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no new and material evidence pertaining to the Veteran's claim for service connection for bilateral hearing loss was received prior to the expiration of the appeal period stemming from the December 1980 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thereafter, the RO last finally denied the Veteran's claim for service connection for bilateral hearing loss in a November 2010 rating decision. The Veteran did not appeal the decision and so it became final. No new and material evidence was received within a year of the November 2010 rating decision. The Veteran's claim to reopen was received in July 2012. The evidence received since the November 2010 RO decision includes a November 2012 VA examination report in which the examiner opined that the Veteran's hearing loss was related to his military service. Such is new in that it was not of record at the time of the November 2010 RO decision and is material as it reflects a positive nexus between the Veteran's bilateral hearing loss and service. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for bilateral hearing loss is reopened. IV. Hearing Loss-Service Connection Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999). Impaired hearing will be considered to be a disability by VA standards 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 these frequencies 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. As mentioned above, the Veteran asserts his bilateral hearing loss had its onset in service, due to noise exposure from combat training. The Veteran's DD Form 214 reflects that he received the Korean Service Medal, among other honors. The Veteran has a current diagnosis of bilateral hearing loss per VA standards, as noted in a November 2012 VA examination. At the November 2012 VA examination, audiometric testing of the Veteran's hearing yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 95 105 105 105+ 105+ LEFT 100 105 100 105 105+ Maryland CNC speech discrimination scores were 36 percent for the right ear and 0 percent for the left ear. The examiner diagnosed the Veteran with mixed hearing loss in his right ear and sensorineural hearing loss in his left ear. Based on examination of the Veteran and a review of the claims file, the examiner opined that the Veteran's hearing loss was at least as likely as not caused by or a result of an event in the Veteran's military service. The examiner found that it was at least as likely as not that the Veteran acquired a significant threshold shift due to acoustic trauma during military service. The examiner indicated that his opinion was based on a survey of hearing loss in members of the combat arms. The examiner also opined that it was more likely as not that the current middle ear pathology of otosclerosis and concomitant hearing impairment was unrelated to events, injuries, and exposures during military service. Also, it was more likely as not that the onset of otosclerosis would have obliterated any evidence of a noise induced hearing loss acquired during military service. The examiner noted that the Veteran had seven years of service, worked on a flight line, and supported the 3rd Infantry combat engagements. Based on the group mean thresholds of members serving four to ten years and the Veteran's unit's history of Korean War duties, it was as likely as not that the Veteran acquired a significant threshold shift in service that meets current VA criteria for service connection. The examiner indicated that it was more likely as not that evidence of the noise induced hearing loss was masked by the onset of otosclerosis after the Veteran left service. The examiner explained that otosclerosis was a progressive middle ear pathology that was not caused by acoustic trauma and had no known causal links with events or exposures during military service. The examiner included a very detailed discussion of pertinent records contained in the claims file. As noted above, the November 2012 VA examiner has diagnosed the Veteran with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear and has indicated that hearing impairment from non-service related otosclerosis is layered on hearing impairment attributable to in-service noise exposure. "Mixed hearing loss is a combination of conductive and sensorineural hearing loss, meaning that there may be a problem in the outer or middle ear, as well as in the inner ear (cochlea) or auditory nerve." WebMD, The Causes and Symptoms of Severe Hearing Loss. The two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). See VBA Training Letter 10-02. The Board accords the November 2012 VA examiner's opinion significant probative value on the question of etiology, as it reflects an opinion based on a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's assertions and pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the examiner offered clear conclusions with supporting data and reasoned medical explanations. Id., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no contrary competent evidence or opinion of record to refute the VA examiner's favorable opinion. The Board notes again that a vast majority of the Veteran's service records are unavailable, as they were destroyed by fire. The Board finds that the November 2012 opinion establishes a nexus between the Veteran's in-service noise exposure and bilateral sensorineural hearing loss, such that service connection is warranted. ORDER The appeal concerning entitlement to special monthly compensation based on aid and attendance/housebound benefit is dismissed. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral sensorineural hearing loss is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs