Citation Nr: 1332997	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  13-03 098	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES
	
1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left ear hearing disability.

2.  Entitlement to service connection for a left ear hearing disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Y. Curtis, Associate Counsel




INTRODUCTION

The Veteran served on active duty from April 1966 to April 1968.  His awards and commendations include the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office.


FINDINGS OF FACT

1.  In an April 2007 rating decision, the RO denied the claim of entitlement to service connection for a left ear hearing disability.  The Veteran was notified of the decision and no new and material evidence was submitted within one year of determination notification.

2.  Newly received evidence presented since the April 2007 rating decision is material and relates to an unestablished fact necessary to substantiate the claim for service connection.

3.  A left ear hearing disability preexisted service and increased in severity beyond the natural progression of the disability during such service.


CONCLUSIONS OF LAW

1.  The April 2007 rating decision denying service connection for a left ear hearing disability is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).

2.  New and material evidence has been received since the April 2007 rating decision; thus, the claim is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  The preexisting left ear disease was aggravated by service.  38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specific to requests to reopen, a Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  In this decision, the Board reopens and grants the Veteran's claim of entitlement to service connection for a left ear hearing disability.  Accordingly, any error, if present, committed with respect to either the duty to notify or the duty to assist is harmless and results in no prejudice to the Veteran.

II.  New and Material Evidence Claim

The Veteran seeks to reopen a previously denied claim of service connection for a left ear hearing disability.

Rating actions from which an appeal is not timely perfected become final one year following notice of the adverse decision to the Veteran.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103.

Under 38 U.S.C.A. § 5108, "[i]f 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."  Id.

Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is evidence, which, by itself or when considered with pervious 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.  Id.

For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

In an April 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for left ear hearing loss.  The RO reasoned that the evidence indicated that his left ear hearing loss pre-existed service and was not aggravated by service.  In reaching this determination, the RO considered the Veteran's service treatment records, April 2007 VA examination report, and a private audiogram with an opinion.  Notice was issued to the Veteran within the same month.

In November 2007, the Veteran submitted duplicate copies of the previously considered private audiogram and opinion.  The Veteran also submitted statements regarding the nature of his service and the onset of his hearing loss that were previously considered.  The Veteran did not submit a notice of disagreement within the required time period and the rating decision became final.  38 C.F.R. § 20.1103.

In July 2010, the Veteran filed an application to reopen his claim for service connection.  In support of his application, the Veteran submitted a private medical opinion and audiogram results from the Balance and Hearing Center for May 2010.  The medical opinion noted that the Veteran was exposed to excessive noise in Vietnam and opined that the Veteran's high frequency sensorineural hearing loss could have been due to excessive noise exposure.

Since the lack of evidence indicating an aggravation of the Veteran's preexisting left ear hearing disability during service was the basis for the denial of the claim in the April 2007 rating decision, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist.  See 38 C.F.R. § 3.303 (2013); See also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  The newly received medical records from Balance and Hearing Center tends to relate to an unestablished fact as it related to the Veteran's left ear hearing disability, and thereby triggered VA's duty to assist.  Additionally, an October 2012 VA examination report provides a positive opinion regarding the permanent aggravation of the Veteran's hearing loss.  The evidence is both new and material and raises a reasonable possibility of substantiating the claim.  Since new and material evidence has been received, the claim must be reopened.  The Veteran's appeal to this extent is allowed.

III. Principles of Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

Service connection may be warranted for a preexisting injury or disease that was aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153, 38 C.F.R. § 3.306(a).

A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in physical examination reports are to be considered as "noted."  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

Clear and unmistakable evidence means that the evidence cannot be misinterpreted or misunderstood, i.e., it is undebatable.  Quirin v. Shinseki, 22 Vet. App. 390, 396.

A preexisting condition will be considered to have been aggravated by military service where there is a permanent increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  However, aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). 

Lastly, 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above 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.  The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id.

IV. Facts and Analysis

In a report of medical history dated July 1965, the Veteran denied ear troubles; however, pre-induction audiogram results indicate he experienced left ear hearing loss on entrance.  The results of the July 1965 audiogram when converted to ISO standards were as follows: 

Hertz
500
1000
2000
3000
4000
Left
20
10
25
55
50

Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units.  The aforementioned results were converted to International Standards Organization (ISO) units to facilitate the comparison of results.

The pre-induction examination shows hearing loss on entrance with a 55 and 50 decibel loss in the left ear at 3000 and 4000 Hz respectively.  The Veteran was placed on a hearing profile and no additional defects were discovered upon physical inspection in April 1966.  Because left ear hearing loss was noted at the time of entrance, the presumption of soundness does not attach as it is related to the Veteran's left ear.  Therefore, service connection for left ear hearing loss can only be established for aggravation of the preexisting hearing loss.   

Given that it has been established that the Veteran's left ear hearing loss was noted on entrance examination, the issue now becomes whether the Veteran experienced a permanent worsening beyond the natural progression of the disease during service.  

As previously noted, the Veteran was awarded the Combat Infantryman Badge.  Thus, he is a combat Veteran.  As the Veteran served in combat, the combat presumptions of 38 U.S.C.A. § 1154(b) apply and lay evidence consistent with the hardships of such service will be accepted as sufficient proof of aggravation.  In this regard, it is noted that the Veteran served as a light weapons infantryman in Vietnam from 1966 to 1967.  Moreover, service treatment records reveal that in December 1967, the Veteran complained that his ears felt "plugged" and that he experienced decreased hearing.  No audiogram tests were performed, however, the Veteran was noted to have deep cerumen bilaterally and an ear irrigation was ordered to remove the excess cerumen.  Given that the Veteran's complaints of decreased hearing are consistent with the circumstances, conditions and hardships of such service, the evidence is at least in equipoise that there was development of increased symptomatic manifestations of the Veteran's preexisting left ear hearing disability during or proximately following his in service experiences.  That is, the evidence is consistent with the Veteran's assertions of experiencing increased hearing impairment during service.  Thus, the presumption of aggravation attaches.

Accordingly, the burden shifts to VA to rebut the presumption of aggravation by clear and unmistakable evidence that either the injury or disease did not increase in severity during service or that any increase during service was due to the natural progression of the disease or injury.  Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable.  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).  Otherwise, service connection for left ear hearing loss is warranted.

While it is acknowledged that upon separation from the military in April 1968, the Veteran checked that he had hearing loss, but audiogram results from the April 1968 separation exam were as follows:

Hertz
500
1000
2000
4000
Left
10
0
15
40

The separation audiogram results show that the Veteran did not experience a decrease in hearing acuity at 500, 1000, 2000, or 4000 Hz during service.  Notably, the Veteran exhibited hearing loss at 3000 Hz at induction and hearing measurements at 3000 Hz were not conducted upon separation.  It is also acknowledged that in the April 2007 VA opinion, the VA examiner stated that although hearing measurements at 3000 Hz were not conducted at separation, it did not appear that the Veteran experienced significant changes in his left ear hearing during service.  Specifically, the examiner noted that if the Veteran experienced deterioration of his hearing as a result of noise exposure in service, some decrease in hearing at 4000 Hz would have been detected because 4000 Hz is a frequency which is usually most affected by noise exposure in the initial stages.  

Nonetheless, the April 2007 VA opinion is not sufficient to rebut the presumption of aggravation.  The examiner's use of the audiogram results at 4000 Hz as a proxy for the lack of testing conducted at the 3000 Hz frequency upon separation does not provide clear and unmistakable evidence that the Veteran's hearing acuity did not worsen during service.  The Veteran's hearing loss does not have to be significant as well.  The examiner's reasoning that hearing acuity at 4000 Hz is usually most affected by noise exposure is not definitive.  Notably, the Veteran entered service with a higher decibel loss at 3000 Hz than 4000 Hz.  Additionally, the examiner discounted the Veteran's contemporaneous reports of hearing loss during service based on the fact that the Veteran's hearing loss preexisted service.  The Veteran, however, is competent to report observable symptoms such as the decrease of his hearing acuity in service.  See Layno v. Brown, 6 Vet. App. 465, 470.  The 1967 report substantiates the Veteran's assertions at that time, as he complained of decreased hearing during service. 

Similarly, the December 2012 VA examiner also indicated that the Veteran's pre-existing hearing loss was not aggravated beyond its normal progression because his hearing was unchanged at separation.  The examiner provided a conflicting opinion and rationale, however.  The examiner noted that it is not clear what effects noise exposure in combat had on the Veteran's hearing.  Specifically, the examiner noted that the rate of the progressive hearing loss is the same for both ears and is an indicator that combat noise may be responsible for the shift or aggravation of the existing left ear hearing loss.  Lastly, the examiner opined that the Veteran's bilateral hearing loss is at least as likely as not permanently aggravated by service.

When resolving doubt in the Veteran's favor, the December 2012 VA opinion is also insufficient to rebut the presumption of aggravation.  The examiner initially reports that the Veteran's preexisting hearing loss was not aggravated beyond its normal progression, but also states that the Veteran's bilateral hearing loss is at least as likely as not permanently aggravated by service.  Additionally, the examiner indicated that it is not clear what effects noise exposure in combat had on the Veteran's hearing.  The conflicting information is resolved in favor of the Veteran.

Consequently, the Board concludes that although a left ear hearing disability was noted at the time of the Veteran's entry into active service, there is no clear and unmistakable evidence that it did not undergo an increase in severity during active service or that any increase was due to the natural progression of the disorder.  Accordingly, service connection for a left ear hearing disability is granted.



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ORDER

New and material evidence having been received, the claim of entitlement to service connection for a left ear hearing disability is reopened. 

Service connection for a left ear hearing disability is granted.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs