Citation Nr: 1334135 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-48 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for left ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco. Texas. Jurisdiction over the matter is with the Denver RO. In May 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. In an August 1993 decision, the Board determined that the Veteran had failed to submit new and material evidence to reopen the claim for service connection for left ear hearing loss. 2. Evidence added to the record since the August 1993 Board decision, that is not cumulative or redundant of evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for left ear hearing loss and raises a reasonable possibility of substantiating that claim. 3. Left ear hearing loss was noted on the Veteran's entrance into active service. 4. There is evidence that the Veteran's preexisting left ear hearing loss was aggravated by his active service, to include in-service noise exposure. 5. The Veteran's current left ear hearing loss disability is etiologically related to the left ear hearing loss disability present during his active service. CONCLUSIONS OF LAW 1. The August 1993 Board decision that disallowed the reopening of the claim for service connection for left ear hearing loss is final. 38 U.S.C.A. 7104(b) (West 2002); § 38 C.F.R. § 20.1100(a) (2013). 2. As new and material evidence has been submitted, the criteria to reopen a previously denied claim of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service aggravation of left ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Additionally, a Veterans Law Judge who chairs a hearing must fulfill duties specified at 38 C.F.R. 3.103(c)(2) (2012). In this case, the Board is granting the benefit sought by the Veteran. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify, the duty to assist, or the duties under 38 C.F.R. 3.103(c)(2), such error was harmless and will not be further discussed. Finally, associated with the claims file is the report of a January 2013 VA examination report that includes evidence pertinent to the issues before the Board. That report has not yet been reviewed by the RO. However, the Board here grants the benefit sought by the Veteran and therefore review of that evidence by the RO is not necessary. 38 C.F.R. § 20.1304(c) (2013). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to compensation to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated. 38 U.S.C.A. § 1131 (West 2002). Regulation provides that service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 (West 2002); 38 C.F.R. § 3.306(a) (2013). Prior to the issuance of the decision on appeal, VA had previously denied entitlement to disability compensation benefits for a left ear hearing loss disability. Therefore, prior to reaching the merits of this claim, the Board must first determine if it has jurisdiction to do so by determining if the claim may be reopened. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Other than where there are certain exceptions, not present in the instant case, decisions of the Board are final on the date of mailing stamped on the face of the decision. 38 C.F.R. § 20.100(a) (2013). Except as provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b). "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) (2013). VA first received a claim of entitlement to service connection for a left ear hearing loss disability in August 1992. The RO denied that claim in a January 1983 rating decision on the basis that preexisting left ear hearing loss was noted at entrance into active service and was not aggravated by that service. The Veteran sought to reopen the claim in June 1990, and in July and October 1990 the RO disallowed the claim on the basis that new and material evidence had not been added to the record. The Board denied the Veteran's appeal of that issue in a decision stamped on its face in August 1993. That decision is final. 38 C.F.R. § 20.1100. Parenthetically, a November 1994 memorandum decision from the United States Court of Appeals for Veterans Claims (Court) affirmed the August 1993 decision. In January 2013, the Veteran underwent a VA audiology examination. After reviewing the Veteran's claims file and examining the Veteran, the examiner provided an opinion that the Veteran's left ear hearing loss was aggravated by his active service. This evidence thus relates to an unestablished fact necessary to substantiate the claim of entitlement to VA compensation benefits for a left ear hearing loss disability and raises a reasonable possibility of substantiating the claim. The evidence is not cumulative or redundant of evidence of record at the time of the January 1992 Board decision. As new and material evidence has been submitted, the claim is reopened and the Board now turns to the merits of the claim. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2013). 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, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz.) is 40 decibels (dB.) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz. are 26 dB. or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Service treatment records include a July 1979 report of medical examination documenting an abnormal clinical evaluation of the Veteran's ears. Audiometer test results show that the Veteran had thresholds of 35 dB. at 2000 Hz. and 40 dB. at 4000 Hz. Such was even diagnosed at that time. This shows that he had a left ear hearing loss disability noted at entrance into active service. Therefore, service aggravation of the preexisting left ear hearing loss is the claim at issue, not service connection for left ear hearing loss. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies"). Audiometric testing conducted during the January 2013 VA examination revealed a current left ear hearing loss disability as defined at 38 C.F.R. § 3.385. The examiner indicated that the Veteran had sensorineural hearing loss. The examiner also provided an expert opinion that the Veteran's current left ear hearing loss disability was as likely as not caused by or a result of an event in active service and provided an adequate rationale for that opinion. She also provided an expert opinion that his left ear hearing loss preexisted his entrance into active service (noted at entrance into active service), increased in severity in service, and that the left ear hearing loss was aggravated by his active military service. She provided an adequate rationale, explaining that there was an increase in audiometric findings between entrance into active service in 1979 and separation from active service in 1982 and explained that this was as likely as not due to exposure to noise during active service. The 1979 report of medical examination at entrance into active service is the most probative evidence of record that the Veteran had a preexisting left ear hearing loss disability noted at entrance into active service. The January 2013 examination report is the most probative evidence of record as to the other facts that are material to this case. That report provides sufficient evidence for the Board to conclude that the Veteran has a current left ear hearing loss disability as defined by VA regulation, that his current left ear hearing loss disability is due to or the result of his active service, and that he had a hearing loss disability at entrance into active service that was aggravated by his active service. For the reasons stated above, the Board concludes that service aggravation of a preexisting left ear hearing loss disability is warranted. His appeal therefore must be granted. ORDER The claim of entitlement to VA disability compensation benefits for left ear hearing loss is reopened. Service aggravation of a left ear hearing loss disability is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs