Citation Nr: 1334991	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  07-31 251A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

1. Entitlement to an increased rating in excess of 20 percent for osteoarthritis of the right knee.

2.  Whether new and material evidence has been received to reopen a claim for service connection for a bilateral hearing loss disorder.

3. Entitlement to service connection for a bilateral hearing loss disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran; Veteran's wife


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

The Veteran had service from August 1968 to August 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

The Veteran appeared before the undersigned Acting Veterans Law Judge at a Board hearing via videoconference in November 2012.  A transcript of this hearing is of record.  

The Virtual VA paperless claims processing system includes a transcript of the November 2012 Board hearing.  


FINDINGS OF FACT

1.  At the time of his hearing before the Board in November 2012, the Veteran withdrew his appeal with respect to the issue of entitlement to an increased rating for osteoarthritis of the right knee.

2.  The RO previously considered and denied the Veteran's claim of entitlement to service connection for bilateral hearing loss in a February 2004 rating decision and a January 2005 statement of the case.  The Veteran did not perfect an appeal of that decision, and no pertinent evidence was received within the one year following its issuance.

3.  The evidence associated with the record since the February 2004 rating decision and January 2005 statement of the case relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability.

4.  The Veteran's bilateral hearing loss disability is related to his service


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the claim for an increased rating for osteoarthritis of the right knee. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 

2.  The February 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012).

3. The evidence received subsequent to the February 2004 rating decision is new and material, and the claim for service connection for a bilateral hearing loss disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

4.  Resolving reasonable doubt in favor of the Veteran, a bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. 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

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.

Withdrawn Claim

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Appeals must be withdrawn in writing except for appeals withdrawn on the record at a hearing.  Id. 

At the time of the Veteran's hearing before the Board in November 2012, the Veteran stated that he wished to withdraw his appeal for entitlement to an increased rating for osteoarthritis of the right knee.  Accordingly, the Board does not have jurisdiction to review the appeal of the denial of this claim, and the appeal is dismissed.

New and Material Evidence

In February 2004, the RO denied service connection for bilateral hearing loss, in part, because the evidence failed to establish that the Veteran's hearing loss disability was due to service.  The Veteran was notified of the decision and of his appellate rights.  The Veteran filed a notice of disagreement, along with supporting private medical records in March 2004 and May 2004.  

In January 2005, the RO affirmed the denial in a statement of the case.  The Veteran did not perfect an 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 February 2004 rating decision and January 2005 statement of the case are final.

In March 2007, the Veteran filed an application to reopen his claim of service connection for bilateral hearing loss.  In an August 2007 rating decision, the RO denied the application, finding that the Veteran had not submitted new and material evidence.  The Veteran disagreed with that decision and perfected this appeal. 

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 January 2005 statement of the case included the Veteran's claim, his service treatment records, a supporting opinion from R.L., M.D., and a VA examination and opinion.  The Veteran's claim was denied because the RO found that the Veteran's hearing loss was not incurred in or caused by his period of service.  

Since January 2005, the Veteran submitted a March 2007 opinion from Dr. L., a March 2007 audiogram, a personal statement, a September 2008 medical evaluation by C.B., M.D., an October 2008 lay statement from K.H., a September 2011 VA audio examination for tinnitus, and an October 2011 opinion from Dr. B.  He also provided testimony at a November 2012 Board hearing.   

The Board finds that Dr. B's evaluation and opinion are new and material evidence. Specifically, he opined that the Veteran's hearing loss is a result of in-service noise exposure and that there is no evidence of another etiology for his hearing loss disability.  His report relates to the basis of the prior denial that the Veteran's hearing loss is due to his noise exposure during service.  Accordingly, the petition to reopen the claim is granted and the claim is reopened. 

Service connection claim

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 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 addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, which includes sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  As organic diseases of the nervous system (including sensorineural hearing loss), is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).



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. 

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley, 5 Vet. App. at 157, citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988).  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 may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Id. at 160.

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss.

The Veteran's service treatment records show that in an August 1970 audiometric examination, his puretone threshold values, in decibels, were as follows:

      500 Hz   1000 Hz	  2000 Hz	3000 Hz       4000 Hz       6000 Hz
Right ear
20
20
20
25
20
30
Left ear
10
10
15
15
15
25

In March 1971, the audiogram results were:

      500 Hz   1000 Hz	  2000 Hz	3000 Hz       4000 Hz       6000 Hz
Right ear
25
15
10
10
10
25
Left ear
20
10
5
10
15
35

An audiogram conducted in July 1972, at separation, shows that his puretone threshold values, in decibels, were as follows:

      500 Hz   1000 Hz	  2000 Hz	3000 Hz       4000 Hz       6000 Hz
Right ear
5
5
5
5
5
5
Left ear
5
5
5
5
5
5

Finally, a post-service December 1974 audiogram shows that his puretone threshold values, in decibels, were as follows:

      500 Hz   1000 Hz	  2000 Hz	3000 Hz       4000 Hz       6000 Hz
Right ear
100
0
0
0
5
10
Left ear
10
10
0
0
5
15

The Veteran filed claims of service connection for hearing loss and tinnitus in September 2003.  In his claims, the Veteran stated that he was a jet aircraft mechanic for 48 months, with 10 months in Vietnam.  He specifically cited an incident where an aircraft taxied by the hangar and blasted the hangar interior.  The Veteran alleged that this was a traumatic acoustic event.  

The Veteran underwent a VA audiological examination in December 2004, and the Board finds that this is the most probative opinion of record.  An audiogram shows that his puretone threshold values, in decibels, were as follows:

      500 Hz	1000 Hz	2000 Hz	3000 Hz 	4000 Hz
Right ear
10
10
10
30
45
Left ear
10
10
5
20
40

The VA examiner noted that the Veteran reported noticing hearing difficulty while in service.  He worked for four years as a jet aircraft mechanic, during which time he was exposed to loud noise while wearing hearing protection.  The Veteran also reported 10 months working on hydraulic power units in Vietnam without hearing protection.  The examiner noted that there is evidence in the service treatment record of a temporary threshold shift, with mild hearing loss found in both ears at 6000 Hz, in the August 1970 and March 1971 audiograms.  

Post-service, the Veteran reported working as an auto mechanic for six months and on the flight line in the Reserves for two years without any hearing protection.  He subsequently worked as a power equipment repairman for four years and then as a repairman for mail sorting equipment for the postal service for 26 years, during which time he was exposed to periodic noise while wearing hearing protection.  

The Veteran also stated that he wore hearing protection during recreational activity, including hunting, target shooting, periodic use of a chainsaw, and woodworking.  

The examiner opined that it is less likely as not that the Veteran's hearing loss is related to military service.  

"Although the Veteran appears to have significant noise exposure while he was in the service, his hearing not only at time of separation, but subsequent to his separation was within normal limits.  It is generally accepted that any hearing loss that is due to noise exposure will make an appearance within a year after exposure to the noise.  The Veteran claimed that he noted some hearing difficulties in service.  It is probable that he was responding to some episodes of temporary threshold shift which may have occurred while he was in the service.  [The Veteran] also appeared to have had significant noise exposure post service, both occupationally and recreationally, and given that his hearing was within normal limits two years subsequent to separation from service, it is more likely that his current hearing loss is due to the post-service noise exposure."     

In the same report, the examiner conceded that the Veteran's tinnitus is as least as likely as not related to his military noise exposure.  In support of this opinion, the examiner noted that the Veteran appears to have significant noise exposure during service and possibly episodes of temporary threshold shift.  

In a January 2005 addendum opinion, the VA examiner further explained that the Veteran was exposed to very significant noise during service.  Additionally, the examiner noted that there was evidence in the treatment records in August 1970 and March 1971 of mild hearing loss in both ears at 6000 Hz, which is a frequency typically affected by noise exposure.  The examiner stated "it is known that instances of temporary threshold shift, as was shown in the service medical records, where hearing improves afterward, are evidence of precursors to permanent losses of hearing." 

The Board finds that this opinion and addendum, while they appear to suggest that service connection is not warranted, instead supports the Veteran's claim.  Pursuant to the holding in Walker, the Board finds that the two in-service audiograms demonstrate characteristic manifestations sufficient to identify the sensorineural hearing loss.  The VA examiner, in the January 2005 addendum, corroborated that the temporary threshold shifts that were shown were evidence of precursors to permanent losses of hearing.  In addition, the Veteran has alleged in written and oral statements that he has experienced hearing loss since that time.

This opinion, then, along with the Veteran's statements as to continuity, supports a finding of service connection for bilateral hearing loss disability.  The Board finds that this opinion is more probative than the others of record, since it considers the Veteran's post-service noise exposure and is provided by an audiological expert.

Furthermore, the Board finds that the Veteran's contention that he was exposed to acoustic trauma during service is consistent with the circumstances of his military service. See 38 U.S.C.A. § 1154(a) (West 2002).  VA has also granted service connection for tinnitus based on noise exposure during service.  Therefore, his assertions in regarding in-service noise exposure are competent, credible, and probative.  Davidson, supra; Jandreau, supra.

Additionally, the Veteran's puretone threshold values at the December 2004 audiogram constitute hearing loss for VA compensation purposes, pursuant to 38 C.F.R. § 3.385.  Therefore, the record shows evidence of a current hearing loss disability.

Given these factors, the Board finds that the evidence is at least in equipoise to show that the Veteran has a bilateral hearing loss disability that was caused by acoustic trauma during active service.  Accordingly, and resolving any remaining doubt in favor of the Veteran, entitlement to service connection for a bilateral hearing loss disability is warranted. 


ORDER

The appeal for an increased rating for a right knee disability is dismissed.

As new and material evidence has been submitted to reopen a claim of service connection for bilateral hearing loss, the petition to reopen is granted.  

Subject to the provisions governing the award of monetary benefits, service connection for a bilateral hearing loss disability is granted.



______________________________________________
REBECCA FEINBERG
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs