Citation Nr: 1324790 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-45 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to June 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). FINDINGS OF FACT 1. In a July 2007 rating decision, the RO denied a request to reopen a previously denied claim for service connection for bilateral hearing loss. Although provided notice of this decision, the Veteran did not perfect an appeal thereof. 2. Evidence received since the July 2007 rating decision is new and material, as it raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The Veteran's current bilateral hearing loss is related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the July 2007 rating decision, and the Veteran's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Bilateral hearing loss was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans 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). Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the issue of whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss because the Board is reopening the claim and granting service connection for bilateral hearing loss. As such, this decision poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence to Reopen Claim The Veteran's initial claim seeking service connection for bilateral hearing loss was denied by the RO in May 2002 because the evidence did not show that the Veteran's bilateral hearing loss was related to service. The Veteran did not perfect an appeal thereof. Thus, the May 2002 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2012). In February 2005, July 2006 and July 2007 rating decisions, the RO declined to reopen the Veteran's claim because the Veteran had not submitted new and material evidence that his bilateral hearing loss was related to service. The Veteran did not perfect an appeal with respect to the February 2005, July 2006 and July 2007 rating decisions and those rating decisions are also final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. In April 2009, the Veteran filed the present claim to reopen the issue of entitlement to service connection for bilateral hearing loss. In an April 2010 rating decision, the RO denied reopening the Veteran's claim based on a finding that the Veteran did not submit new and material evidence. In June 2010, the Veteran filed a notice of disagreement, and in November 2010, he perfected his appeal. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156(a). Although the RO determined that new and material evidence was not presented to reopen the claim of entitlement to service connection for bilateral hearing loss, this decision is not binding on the Board. A claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the July 2007 rating decision is the last final disallowance of the Veteran's claim, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 284 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Comparing the evidence received since the RO's July 2007 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for bilateral hearing loss. The newly submitted evidence includes testimony provided by the Veteran describing his initial difficulty with hearing loss in service as well the progression of his hearing loss after service discharge, and explaining the types of post-service employment that he had with specific reference to potential noise exposure. The newly submitted evidence also includes a June 2009 medical statement from the Director of Audiology at the Mountain Home VA Medical Center (VAMC) indicating a link between the Veteran's bilateral hearing loss and his active duty service. The lay evidence of symptomatology and the medical nexus evidence is new evidence, as it was not of record at the time of the July 2007 rating decision. In addition, the evidence is material, as it raises a reasonable possibility of substantiating the Veteran's claim for service connection. Accordingly, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen his claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The claim for entitlement to service connection for bilateral hearing loss is reopened. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 documented hearing loss in service is not fatal to a service connection claim for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends that his current bilateral hearing loss disability had its onset during service due to noise exposure. Specifically, throughout the record and during a May 2011 hearing before the Board, the Veteran asserts that his hearing loss began during his service in the Navy. He states that he was assigned to deck work where he was exposed to noisy tools and equipment. He reported that he was not provided with any ear protection. He also reports exposure to noise from gunfire and artillery practice. Also of record is a statement from a former shipmate who described extensive noise exposure that he and the Veteran were subjected to while in the Navy. The Veteran's service treatment records reflect no complaint, findings or diagnosis pertinent to hearing loss. At the time of the Veteran's August 1972 enlistment physical examination, his hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 - 5 LEFT 25 25 20 - 5 On discharge examination in May 1975, hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 15 LEFT 25 30 25 20 15 Post-service, a January 2005 VA examination report noted that the Veteran related a history of noise exposure in the Navy. The Veteran acknowledged that he was not exposed to any combat noise but that he was exposed to large gunfire during firing practice. He stated that he was uncomfortable with those sounds and was asked to be removed from that location. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 45 40 50 LEFT 50 50 50 50 45 Speech audiometry revealed speech recognition ability of 94 percent in each ear. The diagnosis was a fairly flat, bilateral, sensorineural hearing loss to a moderate degree. The examiner opined that the Veteran's hearing loss was not due to his military service. The examiner explained that this was due to the fact that both entry and exit audiograms indicated no hearing loss, bilaterally. Additionally, the Veteran reported noticing no difficulty with hearing until 1992 or 1993. The examiner further noted that the audiologic testing also suggested that this is a progressive, bilateral, sensorineural hearing loss, of flat configuration, which is not generally associated with noise exposure. The examiner noted that it has been previously suggested that the Veteran's hearing loss appeared to be congenital in nature. An opinion letter was received from Dr. F. M. in February 2007, who noted treating the Veteran for hearing loss since December 1997. Dr. F. M. reported reviewing the Veteran's military entrance and exit examination audiology reports and noted that there was a decrease in hearing on the exit exam compared to the entrance exam. Dr. F. M. felt that these results are an indication that the Veteran's hearing loss was not congenital in nature. Dr. F. M. opined that the Veteran's hearing loss was most likely caused by noise exposure related to the years that he served in the U.S. Navy. Dr. F. M. acknowledged that the Veteran was exposed to heavy gunfire, as well as a noisy environment during his military service. In a June 2009 letter, the Director of Audiology at the Mountain Home VAMC reported that the Veteran had long experienced hearing loss that began approximately in 1972 to 1973 during his time in active service. The VA audiologist noted that many of his patients, including the Veteran, report a history of noise exposure that was "as likely as not" a major contributor to hearing-related complaints. The audiologist stated that although the Veteran may not have reported all of these difficulties upon discharge, it is clear that his service-related exposures and experiences have produced enduring physical problems that influence his ability to communicate and function as he once did. There is conflicting evidence regarding a nexus between the Veteran's current hearing loss and his military service. The VA examiner appeared to rely, at least in part, on the lack of evidence showing hearing loss during service as the basis of the negative etiology opinion. The Board finds that this opinion is not highly probative as it stands in contrast with statute and regulations service connection for hearing loss may be granted even when a hearing loss is not shown in service or demonstrated upon discharge from service. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.303. Dr. F. M. and a VA audiologist have related the Veteran's bilateral hearing loss to his period of active service based on his reports of excessive noise exposure during that time period. Here, when the Veteran's statements, service treatment records and positive medical opinions are considered, the Board finds that the evidence is at least in equipoise, and concludes that service connection for bilateral hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs