Citation Nr: 1336512 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-29 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of service connection for bilateral hearing loss and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1962 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) in Houston, Texas. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In May 2013, the Veteran presented testimony relevant to the appeal at a Board hearing held by videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In June 2013, the Veteran submitted additional evidence in support of the appeal, which was accompanied by a waiver; therefore, the submitted evidence will be considered by the Board in the first instance during the course of appellate review. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). FINDINGS OF FACT 1. In the October 2009 rating decision, the RO determined that new and material evidence sufficient to reopen the service connection claim for bilateral hearing loss had not been received, on the basis that the evidence still did not show hearing loss during service, showed normal hearing at the enlistment and separation examinations, and there was no medical or other evidence received refuting the negative VA medical opinion. 2. The Veteran did not appeal the October 2009 RO rating decision after being notified of his appellate rights, and no additional evidence was received within one year of the decision. 3. Evidence received since the October 2009 rating decision relates to a previously unestablished fact necessary to substantiate the service connection claim for bilateral hearing loss. 4. The Veteran was exposed to loud noise during active service. 5. The Veteran currently has a bilateral hearing loss disability for VA disability compensation purposes. 6. The Veteran's bilateral hearing loss disability has been attributed, in part, to in-service noise exposure. 7. Resolving reasonable doubt in the Veteran's favor, the current bilateral sensorineural hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. The October 2009 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection of bilateral sensorineural hearing loss are met. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For reasons explained below, the Board finds the Veteran's service connection claim for bilateral hearing loss to be reopened by way of the submission of new and material evidence. The Board is also granting service connection for bilateral sensorineural hearing loss on the merits for reasons discussed below. Given the favorable outcome of the appeal, which is a full grant of benefits sought, the Veteran's claim has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Reopening of Service Connection Laws and Regulations Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c),(d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id., at 118. Reopening of Service Connection for Bilateral Hearing Loss The Veteran originally filed a claim in August 2006 for service connection for bilateral hearing loss, which was denied in an unappealed March 2007 rating decision. The claim was denied on the basis that the evidence did not show diagnosis or treatment for hearing loss during service, or a diagnosis of hearing loss within one year of discharge, and the VA medical examiner had opined that hearing loss was not at least as likely as not related to service. In May 2009, the Veteran filed a claim to reopen service connection for bilateral hearing loss. In an October 2009 rating decision, the RO determined that new and material evidence had not been received sufficient to reopen the claim. The Veteran was notified of that rating decision and provided notice of his procedural and appellate rights in November 2009; however, he did not initiate appeal of the decision within the one-year appeal period, and no additional evidence was received within one year of that notice. The October 2009 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. Since the October 2009 rating decision, the Veteran has submitted a July 2010 VA audiology consult that notes the Veteran's report of in-service and post-service noise exposure and contains an assessment from a VA audiologist of bilateral asymmetrical sensorineural hearing loss with noise and aging as the likely etiologies. Thus, the VA audiologist considered the Veteran's history of noise exposure, which included in-service noise exposure, and attributed the Veteran's current bilateral sensorineural hearing loss to noise exposure and aging. The medical opinion from the VA audiologist indicates that the Veteran's sensorineural hearing loss is related, in part, to in-service noise exposure. The July 2010 VA treatment record is new to the file, addresses the reason of the prior denial, and raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for bilateral hearing loss. See 38 C.F.R. § 3.156(a). The Board will now consider service connection for bilateral hearing loss on the merits below. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a) as an organic disease of the nervous system; therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable with respect to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system (e.g., sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Service Connection for Bilateral Sensorineural Hearing Loss Analysis The Veteran contends that he currently suffers from bilateral hearing loss due to military noise exposure. He asserts that he was exposed to the loud noise of aircrafts and ground power units while performing his duties as an aircraft mechanic. After a review of the evidence, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385 and has a current diagnosis of bilateral sensorineural hearing loss. See February 2007 VA audiological examination report; August 2010 VA audiology consult note. Because the question of whether there is a current bilateral hearing loss disability for VA purposes is established, the Board will next consider whether the current hearing loss disability was incurred in service. The Board next finds that the Veteran was exposed to loud noises (i.e., suffered acoustic trauma) during service. The Veteran's DD Form 214 shows that he served as an aircraft mechanic during service, and the Veteran has reported being exposed to the loud noise of aircrafts during his period of service. The Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances and conditions of his service and is, therefore, credible and probative evidence of in-service noise exposure. The record also indicates that the Veteran has reported symptoms of hearing loss in service. At the time of the August 2006 claim, the Veteran indicated that the onset of impaired hearing was in 1962. The Veteran is competent to report symptoms of hearing loss and the Board finds his statements as to symptoms of hearing loss since service to be credible. Furthermore, the Board finds that the evidence is in equipoise on the question of nexus between current bilateral sensorineural hearing loss and service. The Board notes that there is conflicting medical opinion evidence of record. On the one hand, the February 2007 VA audiological examiner opined that it was not at least as likely as not that the Veteran's hearing loss had its origin in the Veteran's period of military service. In providing rationale for the medical opinion, the February 2007 VA audiological examiner noted the Veteran's normal hearing at the October 1963 separation examination and the absence of any complaint of hearing loss on the October 1963 separation report of medical history. On the other hand, the Veteran's treating VA audiologist wrote in a July 2010 VA audiology consult note that aging and noise were the likely contributing etiologies for the Veteran's asymmetric sensorineural hearing loss. The treating VA audiologist considered the Veteran's history of noise exposure, current symptoms, and the type of hearing loss demonstrated on audiogram; therefore, while not explicitly stated, it may be inferred that the treating VA audiologist attributed the Veteran's hearing loss, in part, to the in-service noise exposure (in addition to post-service noise exposure and aging). The Board notes that both VA audiologists had adequate facts and data on which to base their opinions, and both of the medical opinions are adequate. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral sensorineural hearing loss is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the appeal to reopen service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs