Citation Nr: 1336248 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-29 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active duty service from March 2000 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St Petersburg, Florida. The Veteran testified before the undersigned at a June 2012 Travel Board hearing before the Board held at the St. Petersburg, FL, RO. The transcript of the hearing is of record. A review of the Virtual VA paperless claims processing system did not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. An August 2003 RO rating decision denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. The Veteran was notified of this decision and of his appellate rights, but did not appeal the decision. 2. Evidence associated with the claims file after the denial in August 2003 is new evidence, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim. 3. The competent and credible evidence demonstrates that the Veteran's bilateral hearing loss is related to his active duty service. CONCLUSIONS OF LAW 1. The August 2003 RO rating decision which denied service connection for bilateral hearing loss 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, and the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Bilateral hearing loss was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The petition to reopen the claim of entitlement to service connection for bilateral hearing loss has been granted, as discussed below. Therefore, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, given the favorable disposition of the claim for service connection for bilateral hearing loss, the Board finds that all notification and development actions needed to fairly adjudicate this claim have also been accomplished. New and Material Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105 (West 2002). However, the Veteran may request that VA reopen his claim upon the receipt of "new and material" evidence. 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. See also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran's initial claim of entitlement to service connection for bilateral hearing loss was denied by a RO rating decision dated August 2003. The basis for the denial was that there was no evidence of a current diagnosis of bilateral hearing loss or continuity of such disability since service. The Veteran did not appeal this decision; therefore, it became final. 38 U.S.C.A. §§ 7105 (West 2010); 38 C.F.R. § 20.1103 (2013). The Veteran filed a claim to reopen in May 2008. The evidence added to the record since August 2003 included a May 2009 VA audiology examination which indicated that the Veteran had a current diagnosis of bilateral hearing loss, and various statements, including testimony at the June 2012 Travel Board hearing, with the Veteran asserting that he has had bilateral hearing loss since his active duty service. The Board finds that this evidence is both new and material. Therefore, the claim is reopened. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 Veteran contends that exposure to helicopters and artillery fire while serving as an infantryman resulted in his current bilateral hearing loss. The Veteran reported at his June 2012 Travel Board hearing that he was exposed to Chinook helicopters, machine guns, hand grenades and C4. He reported that hearing protection was provided and used, but that the noise exposure was unusually high. The Veteran's Report of Separation from the Armed Forces (DD Form 214) indicates that his military occupational specialty was infantryman. The Veteran is competent and credible to report the circumstances of his service, and there is no evidence which contradicts his report. The Veteran's service treatment records revealed that the Veteran demonstrated some hearing loss prior to separation. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran was afforded a VA examination in May 2009. Audiometric testing showed bilateral hearing loss for VA purposes. The VA examiner opined that the Veteran's hearing loss was less likely than not related to his active military service. The examiner noted, however, that the Veteran was service connected for tinnitus and that the Veteran's hearing loss and tinnitus likely had the same etiology. The Board notes that the Veteran is indeed service-connected for tinnitus. Based on its review of the entire record, the Board finds the evidence to be at least in relative equipoise in showing that the current bilateral hearing disorder is as likely as not due to the result of harmful noise exposure as would be consistent with the Veteran's active duty service including exposure to artillery fire and helicopters. 38 U.S.C.A. § 1154(a) (West 2002). ORDER New and material evidence having been received; the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs