Citation Nr: 1328333 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-14 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence was received to reopen a service connection claim for hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from October 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The RO found that the submitted evidence by the Veteran was new and material, and reopened the December 2003 rating decision. The Veteran seeks service connection for hearing loss. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In a December 2003 rating decision, the RO denied service connection for bilateral hearing loss, finding that hearing loss was not shown in service, and that the Veteran did not currently have a hearing loss disability. 2. Evidence received since the December 2003 rating decision, is not cumulative or redundant of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for hearing loss. 3. The competent medical evidence does not demonstrate that the Veteran has a right ear hearing loss disability as defined by VA. 4. The competent medical evidence demonstrates that the Veteran has a left ear hearing loss disability as defined by VA. 5. The Veteran's left ear hearing loss disability is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The December 2003 rating decision denying entitlement to service connection for hearing loss is final. 38 U.S.C.A. §§ 7104, 7105(d) (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Since the December 2003 rating decision, new and material evidence has been received, which requires the reopening of the claim of service connection for hearing loss. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for establishing entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.85. 4. The criteria for establishing entitlement to service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA has a duty to notify and assist veterans in substantiating a claim for VA benefits pursuant to the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the fully favorable determination in regard to the Veteran's left ear hearing loss, no further discussion of compliance with VA's duty to notify and assist is necessary. With regard to the Veteran's right ear hearing loss claim, the VA's duty to notify and assist pursuant to the VCAA remains. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his or her representative or agent, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. With respect to requests to reopen previously denied claims, a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the case at hand, the record reflects that the RO provided the Veteran with the requisite notice by letter mailed in September 2010. The claim was readjudicated most recently in the January 2012 statement of the case (SOC), therefore, there is no prejudice to the Veteran regarding the timing of notice. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the claims herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, and VA examination reports. In June 2011, and January 2011, VA provided the Veteran with audiology examinations and obtained a medical opinion addressing whether any current hearing loss had its onset during or was caused by active service. The June 2011 audiology examination, and opinion is adequate, as the examination report shows that the examiner, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination with testing and provided a reasoned analysis to support his medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. New and Material Evidence A. Legal Criteria Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened...."). In general, RO decisions are final when they are not timely appealed. See 38 U.S.C.A. § 7105. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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. 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 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. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Only evidence presented since the last final denial will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). B. Analysis The initial rating decision in December 2003 stated that the evidence used in the decision was the Veteran's service treatment records, and evidence provided by the Veteran. The December 2003, rating decision stated that the Veteran failed to provide evidence to substantiate any of the three service connection elements. Since December 2003, additional VA treatment records, and VA examinations have been associated with the file. Specifically, the findings and notes from the Veteran's audiology consultation which included a hearing test from a VA audiologist on February 2010, the audiology note from the Veteran's hearing aid fitting on June 2010, and the VA audio examination administered on June 2011 which stated that the Veteran has a left ear hearing disability, and provided a positive nexus opinion between the Veteran's service and current hearing loss. The documentation is new, as it was not part of the record at the time of the December 2003 rating decision. It is also material, as it offers evidence to unestablished facts. The Veteran has submitted evidence regarding his current disability, and also evidence regarding nexus. This evidence offers a reasonable possibility of substantiating the Veteran's claim, and is therefore material pursuant to 38 C.F.R. § 3.156(a). III. Service Connection A. Legal Criteria The Veteran contends that based on his VA audio exam his sensorineural hearing loss is related to service, and therefore he is entitled to service connection. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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, 1167 (Fed. Cir. 2004). The Veteran is eligible for service connection through a presumptive or direct basis. Service connection for sensorineural hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); see also M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."). Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338- 40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Service connection on a direct basis may 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). In Hensley, the Court held that "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 or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent in certain situations to provide a diagnosis of a simple condition such as hearing loss, though, the Veteran is not competent to provide evidence as to more complex medical questions such as his degree of hearing loss based on decibels and Hertz frequencies, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367 For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. B. Analysis 1. In-service Injury The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. The Veteran stated that while on active duty with the Navy his duties included loading ordnance into the gun mounts on the ships. The Veteran fulfills the in-service injury element for bilateral hearing loss. 2. Current Disability Next, the Veteran does not have a qualifying disability with his right ear. The Veteran was examined at a VA audio exam in June 2011, which included a review of the Veteran's medical history, a physical examination, diagnostic tests, and a diagnosis with rationale. Using the results from a January 2011 VA audiogram the Veteran's right ear auditory thresholds were reported at, 20, 15, 20, 20, 20 decibels at 500, 1000, 2000, 3000, or 4000 Hertz, respectively. The September 2010 exam revealed normal speech recognition scores using the Maryland CNC Test, finding right ear hearing at 100%. Based on the opinion of the June 2011 exam, the Veteran is unable to fulfill the element of current disability with regards to his right ear. Thus, the Veteran is not entitled to service connection for his right ear based on the exam of record. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does, however, have a qualifying disability with his left ear. The Veteran's left ear auditory thresholds from the January 2011 audiogram showed thresholds of 75, 70, 65, 65, and 75, decibels at 500, 1000, 2000, 3000, or 4000 Hertz, respectively. These threshold levels qualify as a hearing loss disability. See 38 C.F.R. § 3.385. The Veteran fulfills the current disability element for service connection. Thus, an analysis of the final element for service connection, nexus, is required regarding the Veteran's left ear hearing loss. A relationship or "nexus" to service, in this case be established on either a presumptive or direct basis. See 38 C.F.R. §§ 3.303, 3.309. 3. Nexus i. Presumptive Service Connection The Veteran has not demonstrated that he has specialized training or knowledge when it comes to diagnosis or etiology of audiologic conditions; he is therefore a layperson in this regard. While the Veteran is competent to discuss the fact that he has hearing loss soon after service, he is not competent to state that his hearing loss reached a particular decibel level, causing a hearing loss disability consistent with 38 C.F.R. § 3.385. Therefore, his lay statements regarding hearing loss within a year of his separation from service are not competent. There is no competent evidence that the Veteran's hearing loss disability manifested itself within one year after separation from service pursuant to 38 C.F.R. § 3.385. The record does not contain any audiograms, or audio treatment which documents a hearing loss disability within the Veteran's first year of separation from service. Therefore, without evidence of a hearing loss disability within one year of separation from service, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.303, 3.307. The first documented diagnosis of hearing loss disability was at the Veteran's VA audiology consult in February 2010, which is well after the presumptive period. There is therefore a lack of credible evidence to show continued symptomatology. 38 C.F.R. § 3.303(b). ii. Direct Service Connection In the instant appeal, there is no conflicting evidence on the issue of nexus. However, there are two likely causes to the Veteran's hearing loss. The VA audiologist in his June 2011 examination stated that the Veteran's left ear hearing disability has both a sensorineural, and conductive component. The audiologist provided a positive nexus opinion stating that the etiology for the Veteran's sensorineural hearing loss is from noise exposure related to his service. In the audiologist's opinion the conductive component of the Veteran's hearing loss is more likely than not caused by otosclerosis and less likely caused by noise trauma. The examiner stated that "otosclerosis, is genetic and/or idiopathic in nature", and that otosclerosis can sometimes also cause hearing loss. The examiner further stated that the worsened hearing loss in the Veteran's left ear, as compared to his right ear, is more likely caused by his otosclerosis. The audiologist's opinion is afforded high probative value as it was made after a review of the relevant evidence, including a prior examination of the Veteran, and contains a rationale for the conclusions reached. Because the audiologist was unable to parse out the precise likeliness of etiology between the conductive and sensorineural components, the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (if it is not possible to separate the effects of service-connected from nonservice-connected conditions, all symptoms must be attributed to the service-connected condition). As such, service connection for a left ear hearing loss disability is warranted. ORDER New and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss; the appeal is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs