Citation Nr: 1329517 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-28 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The appellant and S.L. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to July 1968. This matter comes to 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 San Diego, California. In all other matters, the claim has been handled by the RO in Denver, Colorado. In June 2013, the Veteran testified before the undersigned via videoconference. A transcript of the hearing is associated with the claims file. A review of the Veteran's virtual VA claims files show that they contain only evidence that is duplicative of that already in the paper claims file or irrelevant to the issue on appeal. FINDINGS OF FACT 1. The RO previously considered and denied the Veteran's claim of entitlement to service connection for bilateral hearing loss in an April 1989 rating decision. The Veteran did not appeal that decision, and no pertinent evidence was received within the one year following its issuance. 2. The evidence associated with the record since the April 1989 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The Veteran has been shown to have current bilateral hearing loss that is related to his military service. CONCLUSIONS OF LAW 1. The April 1989 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). 2. The evidence received subsequent to the April 1989 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 all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 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 I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, given the fully favorable decision contained herein, no discussion of these duties is necessary. II. 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss. For these conditions, service connection may be granted if the chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. 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. In April 1989, the RO denied service connection for bilateral hearing loss, in part, based on there being no evidence of hearing loss in service or after service. The Veteran was notified of the decision and of his appellate rights, but he did not appeal. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Moreover, there was no pertinent evidence submitted within one year of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the April 1989 rating decision is final. The Veteran filed his application to reopen the claim in February 2008. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is existing evidence not previously submitted to agency decisionmakers. Material evidence is 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). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The pertinent evidence at the time of the April 1989 rating decision included only the Veteran's service records. They showed that he underwent a whispered voice test upon enlistment in July 1960 with results that were 15/15 bilaterally. The separation examination report shows that pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 10 LEFT 5 5 5 5 5 The Veteran's DD Form 214 shows that he worked as a jet engine mechanic during his years in service. Since the April 1989 decision, the Veteran underwent a VA examination, which found that he had current bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. The Board finds that this examination report is new and material evidence. In particular, the report relates to a previously unestablished fact, as there was no evidence that the Veteran met the VA standards for hearing loss prior to that examination. Accordingly, the claim is reopened. In evaluating this claim on the merits, the Board notes that there are opinions of record from the Veteran, a VA audiologist, and a private audiologist. While the Veteran may be competent to provide an opinion, the opinions of the VA and private audiologists are more probative than the Veteran's lay assertions. In reviewing the VA and private audiologists' opinions, the Board finds that they are at least evenly balanced in probative value. The March 2008 VA examiner's opinion, which weighs against the claim, was based solely on the fact that the Veteran's hearing was normal at separation. However, the absence of in-service evidence of hearing loss disability is not fatal to a claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). On the other hand, the opinion provided in July 2013 from a private audiologist weighs in favor of the Veteran's claim. While the audiologist does not appear to have reviewed the claims file, including the service records, he notes his awareness that the Veteran's separation examination contained normal audiological results, which is the only relevant information contained in the Veteran's service records. In addition, the private audiologist accurately reported that the Veteran worked as a jet engine mechanic during service for eight years. He opined that the noise exposure in service damaged the Veteran's hearing nerve and asserted that the Veteran demonstrating normal hearing upon discharge was not fatal to his claim. Instead, he opined that it can take decades for noise exposure to manifest into measurable hearing loss. The Board finds that the opinion provided by the July 2013 private audiologist is at least as probative as the one provided by the VA examiner in March 2008. Accordingly, as there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Board finds that this is a situation where the benefit of the doubt rule applies. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, giving the Veteran the benefit of the doubt, service connection for bilateral hearing loss is granted. 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