Citation Nr: 1340410	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  12-22 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim for service connection for right ear hearing loss, and if so, whether the reopened claim should be granted.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from October 1970 to February 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  


FINDINGS OF FACT

1.  A September 2006 rating decision denied the Veteran's original claim seeking service connection for right ear hearing loss; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period.

2.  Evidence received after the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the Veteran's claim.

3.  The Veteran's right ear hearing loss existed prior to service and increased in severity during service; the evidence does not clearly and unmistakably establish that the service increase was due to natural progress.


CONCLUSIONS OF LAW

1.  New and material evidence has been submitted to reopen the claim of entitlement to service connection for right ear hearing loss.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013).

2.  The criteria for service connection for right ear hearing loss have been met.  38 U.S.C.A. §§ 101, 106, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.6, 3.303, 3.306, 3.385 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for right ear hearing loss disability.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013).

II. Claim to Reopen

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if 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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In September 2006, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for right ear hearing loss.  The rating decision determined that the Veteran's right ear hearing loss preexisted his military service and was not aggravated therein.  Although notified of this decision that same month, the Veteran did not timely appeal it.  In addition, no pertinent evidence was received within the appeal period.

In December 2011, the Veteran filed to reopen his claim seeking service connection for right ear hearing loss.  In support of his attempt to reopen, the Veteran submitted a December 2011 letter from his private audiologist, C.F., Au.D., expressing his opinion that it is quite likely that the Veteran's current right ear hearing loss is related to his military service.

This evidence is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right ear hearing loss.  Therefore, it is new and material, and reopening of the claim is in order.

III.  Reopened Claim

A.  Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training.  38 U.S.C.A. §§ 101, 106, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303.

A preexisting injury or disease will be considered to have been aggravated by 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 C.F.R. § 3.306(a).  

For wartime service or peacetime service after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation.  38 C.F.R. § 3.306(b).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

B.  Factual Background and Analysis

The Veteran served on ACDUTRA from October 1970 to February 1971.  His preinduction examination, performed in April 1970, revealed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
-10
10
50
LEFT
5
0
-10
15
40

His service treatment reports are silent as to any complaints of hearing loss.  The Veteran's February 1971 separation examination revealed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
/
40
LEFT
15
15
15
/
15

In July 2006, the Veteran filed his original claim seeking service connection for bilateral hearing loss and tinnitus.

In September 2006, a VA audiological evaluation was performed.  The examination report revealed audiological findings of current bilateral hearing loss.  See 38 C.F.R. 3.385 (2013).  The VA examiner then opined that it was as likely as not that at least a portion of the Veteran's hearing loss in the left ear and tinnitus were due to his military noise exposure.  As for his right ear hearing loss, no specific opinion was given.  The VA examiner noted, however, that the Veteran had high frequency hearing loss in the right ear at entrance, and that there was no significant change in hearing sensitivity shown during service.

In September 2006, the RO issued a rating decision which granted service connection for left ear hearing loss and for tinnitus, effective July 2006.

In December 2011, a letter was received from private audiologist, C.F., Au.D.  The private audiologist indicated that the Veteran's service treatment records had been reviewed, and further opined that it was quite likely that the Veteran's inservice noise exposure was the beginning of his hearing loss and tinnitus.

In April 2012, a Disability Benefits Questionnaire (DBQ) audiological examination was conducted.  Following an audiological evaluation, the examiner diagnosed bilateral sensorineural hearing loss.  The DBQ examiner opined that the Veteran's current bilateral hearing loss was as likely as not related to his military service.  In rendering this opinion, the DBQ examiner noted that the Veteran's hearing loss did not exist prior to his military service.

Having determined that the Veteran did have preexisting right ear hearing loss, the RO obtained a supplemental DBQ medical opinion in May 2012.  Following a review of the Veteran's claims file, the DBQ examiner opined that the Veteran's right ear hearing loss clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event, or illness.  In support of this opinion, the DBQ examiner stated that no significant auditory threshold shifts occurred during the Veteran's military service.  Specifically, the DBQ examiner noted that the Veteran's preinduction examination was normal with the exception of a 50 decibel threshold at the 4000 Hertz level; and that his separation examination was also normal with the exception of a 40 decibel threshold at the 4000 Hertz level.

Based upon a longitudinal review of the record, the Board finds that service connection for right ear hearing loss is warranted.  The Veteran's preinduction audiological examination revealed that his right ear hearing loss preexisted his entrance into military service; however, the preexisting right ear hearing loss worsened during service.  Specifically, a comparison of the auditory threshold levels noted on the Veteran's preinduction and separation audiological evaluations reveals increased threshold shifts the 500 (+5), 1000 (+15), 2000 (+25), and 3000 (+5) Hertz levels.  Therefore, the presumption of aggravation applies.  While the DBQ examiner in May 2012 opined that no aggravation had occurred, the rationale provided limited its consideration solely to the threshold findings at the 4000 Hertz level.  No reference was made to the documented threshold increases at all other Hertz levels tested.  Therefore, the Board concludes that the evidence does not clearly and unmistakably establish that the disability was not aggravated by the Veteran's active service.  

Accordingly, service connection for right ear hearing loss is warranted.  


ORDER

New and material evidence having been received, reopening of the claim of entitlement to service connection for right ear hearing loss disability is granted.

Service connection for right ear hearing loss disability is granted.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs