Citation Nr: 1341341 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 12-05 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss disability and if so whether the claim should be granted. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to April 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The claim of entitlement to service connection for bilateral hearing loss was denied in an unappealed, November 2005 rating decision. 2. Evidence received less than one year after the November 2005 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's current bilateral hearing loss disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material evidence was presented within one year of the issuance of the November 2005 rating decision denying service connection for bilateral hearing loss disability 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that 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 bilateral 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). New and Material Evidence 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 & Supp. 2013). 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) (2013). 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) (2013). The Court recently 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO initially denied service connection for bilateral hearing loss in a November 2005 rating decision. The Veteran was notified of the denial by a letter dated that same month. The basis for the denial in November 2005 was that there was no evidence that the claimed condition existed or that it either occurred in or was caused by service. The Veteran initiated an appeal of the decision but did not perfect his appeal with the submission of a timely substantive appeal. However, in September 2006, prior to the expiration of the appeal period, the Veteran submitted an August 2006 private audiological report wherein the treatment provider opined that it was more likely than not that the Veteran's hearing loss started during his military service. This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material. Moreover, since it was received within the appeal period following the November 2005 rating decision, the November 2005 rating decision did not become final. Service Connection for Bilateral Hearing Loss Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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 (West 2002); 38 C.F.R. § 3.102 (2013); 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. The Veteran essentially claims that his bilateral hearing loss began shortly after service and that he has experienced a continuity of symptomatology since that time. In multiple written statements of record, the Veteran has contended that his currently diagnosed bilateral hearing loss was caused by his exposure to noise from small arms and artillery explosions during his active duty service. In October 2005, the Veteran indicated that he had had deteriorating hearing for approximately the last 25 years. He asserted that he believed this was due to firing his weapon left handed. Service treatment records are negative for evidence of hearing loss disability as defined by VA. A May 1976 health record details that the Veteran was hit over the left eye with a night stick but "was not knocked unconscious". He incurred a six centimeter laceration over the left eye that required stitches. The Veteran's head was found to be normal on clinical evaluation at the time of his February 1978 service separation examination. On a February 1978 Report of Medical History, the Veteran marked yes to having a head injury during service. The Veteran's DD Form 214 reveals that his military occupational specialty (MOS) was Tact Wire Opns Spec (Tactical Wire Operations Specialist), that he was assigned to 1st Battalion 12th Infantry, and that he was awarded a Sharpshooter Badge with M16 Rifle. Post-service VA treatment notes dated from 2000 to 2012 detail complaints of hearing loss. In February 2000, the Veteran was noted to be an ex-bull rider who worked construction with complaints of some hearing loss. The Veteran indicated that he worked as a carpenter in March 2000. In June and July 2007, the Veteran was noted to have hearing impairment that was believed to be related to his military service. In an August 2006 private audiological evaluation, a private treatment provider noted the Veteran's reports of long term hearing loss and noise exposure during service while working on firing ranges and from tanks, artillery, and small arms with occasional use of ear protection. It was noted that the Veteran had been employed as a carpenter since 1978 and exposed to construction noise. Audiometry testing was noted to show bilateral, high frequency, sensorineural hearing loss, moderate in the right ear and mild to moderate in the left ear. The treatment provider indicated that the pattern of hearing loss was very typical of a noise-induced loss. Based on test results and information provided by the Veteran, the treatment provider opined that it was more likely than not that the Veteran's hearing loss started during his military service. According to a March 2007 VA fee-based audiology examination report, the Veteran reported a history of significant military noise exposure, including artillery fire and blasts. Post-service noise exposure was not considered significant. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 50 60 LEFT 10 10 5 20 45 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. After examining the Veteran, the examiner indicated that the Veteran presented with mild to moderate sensorineural hearing loss in the higher frequencies bilaterally. The examiner concluded that it was less than likely that his present hearing loss was related to military noise exposure. The examiner highlighted that review of the claims file revealed hearing within normal limits by audiometric test upon entry into and separation from service. In a May 2007 statement, the Veteran indicated that he wore hearing protection when operating noisy equipment on his job site as a carpenter since service separation. In a general statement received in May 2007, a VA ENT physician, J. M., noted that hearing tests may or may not reflect hearing change produced by combat acoustic trauma. It was indicated that damage to the inner ear hair cells may not be severe enough to produce a hearing loss but is severe enough to produce tinnitus or damage accrued in a frequency not tested by a routine audiogram. He concluded that persistent or intermittent tinnitus that is not present before combat noise exposure but is present afterwards was related to the acoustic trauma produced by combat. In a March 2008 statement, the Veteran's spouse described his hearing loss impairment in daily life. In an April 2008 statement, a fellow serviceman detailed that he served with the Veteran during active duty, that they spent many hours at firing ranges and that they were both exposed to noise from small arms, howitzers, tanks, and air strikes. He indicated that he noticed the Veteran's loss of hearing throughout the years. In a September 2008 VHA medical opinion obtained in response to the Veteran's prior claim for service connection for tinnitus, a VA physician with an ENT specialty opined that it was unlikely that military exposure was the etiology of the Veteran's hearing loss. The physician noted that the Veteran's head injury was a laceration and unlikely to be the "culprit". It was noted that the Veteran's occupation and noise levels on Earth were more likely over time the etiology. In a January 2010 VHA medical opinion, a VA physician opined that the Veteran's hearing loss was "most like, as likely as not, related to his military service head injury and his military noise exposure." In the cited rationale, the VA physician indicated that tinnitus was a phenomenon known to be associated intimately with sensorineural hearing loss. It was noted that the Veteran's record showed no other known causes or risk factors for hearing loss or tinnitus. The physician noted his detailed review of the Veteran's claim file, highlighting that Dr. J. M. had reviewed the Veteran's claims file and opined that hearing loss was related to military noise exposure. According to a March 2010 VA fee-based audiology examination report, the Veteran reported a history of significant military noise exposure while serving as a field wire technician in the infantry, including artillery, tank, and small arms fire. The examiner further noted that the Veteran sustained blunt force trauma to the head as a bystander during an in-service fight at a club. Post-service occupational and recreational noise exposure was described as working for two months drilling wells after service and becoming a carpenter in 1978, wearing ear protection when necessary. In his spare time, the Veteran reported that he used to ride motorcycles and enjoyed hunting for many years, wearing ear protection as necessary. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 60 65 LEFT 20 20 20 35 55 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. After examining the Veteran, the examiner indicated that the Veteran presented with mild to moderately severe sensorineural hearing loss from 3000 to 8000 Hertz bilaterally. In a June 2010 decision, the Board granted entitlement to service connection for tinnitus, as the positive and negative evidence for the claim was in equipoise. The RO effectuated that award in a July 2010 rating decision, assigning a 10 percent evaluation for tinnitus, effective August 15, 2005. In a December 2010 addendum, the same fee-based examiner who conducted the March 2010 VA examination noted her detailed review of the Veteran's claims file. She opined that the Veteran's hearing loss was less likely than not (less than 50 percent probability) caused by his military noise exposure. In her cited rationale, the examiner highlighted that the Veteran had normal hearing upon separation from service. She acknowledged that the Veteran's exit audiogram, while normal, showed a 15 dB decreased at 500 Hertz in the right ear. It was indicated that the decrease was not in the region where noise damage would be expected to occur in the higher frequencies and that it was possible that the blow to his left temple was a causative factor. However, the examiner concluded that subsequent audiograms showed this loss reversed itself. She further commented that she had treated many carpenters in the past and found high frequency hearing loss in most of them, regardless of whether or not they wore hearing protection. The examiner noted that it was very difficult for a lay person to subjectively guess with 100 percent accuracy as to whether noise levels were harmful or not. Finally, the examiner acknowledged the argument that hearing loss can show up after removal from noise exposure, noting 38 C.F.R. § 3.303(d) as well as discussion of medical articles referencing that possibility. She indicated that she was not aware of any VA directives that specifically stated hearing loss could show up after removal of hazardous noise. In a September 2011 VA DBQ examination report, the examiner, a VA physician, was asked to review evidence of record, including multiple conflicting opinions, consider the lay history of hearing loss since service, and provide an opinion on the degree of likelihood that the Veteran's hearing loss was due to or related to either in-service noise exposure or in-service head injury. After reviewing the record, citing to multiple medical articles, and consulting with a VA ENT physician, the examiner opined that the Veteran's hearing loss was not due to or caused by noise exposure while in service. It was noted that the Veteran's separation audiogram showed normal hearing and that hearing loss due to acoustic trauma does not continue once the offending noise has been removed. The examiner highlighted that the Veteran did not report any hearing loss on his separation medical questionnaire. It was indicated that the May 2007 letter from Dr. J. M. was a general statement regarding the possibility of hearing loss and combat and that the August 2006 private audiological evaluation was purely speculative, as it relied solely on self reporting without review of the claims file. The physician noted that lay statements of the Veteran were considered but that it was less likely than not that his current hearing loss was due to in-service noise exposure based on available objective evidence of record, such as his normal hearing at the time of discharge. He commented that the single mild threshold shift of 15 dB at a low frequency in the right ear during service was not significant, as the Veteran maintained normal hearing and the shift at a low frequency was not associated with noise-induced hearing loss. The physician concluded that a normal audiogram subsequent to noise exposure would verify that the hearing had recovered without permanent loss. In a November 2011 VA DBQ examination addendum report, the same VA examiner who conducted the September 2011 VA examination opined that it was less likely than not that that the Veteran's hearing loss was due to head injury while in service. In his cited rationale, the physician indicated that the Veteran's service treatment records were silent for hearing loss and his separation examination revealed normal hearing. It was indicated that the Veteran suffered a laceration without evidence that he had intracranial injury during service. The physician commented that hearing loss due to blunt force head trauma would required a much more significant blow to the head with signs of intracranial pathology and not by laceration alone. In February 2012, a VA physician reviewed the Veteran's pertinent history and opined that the Veteran's claimed hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In his cited rationale, the physician indicated that head trauma of the severity and nature reported in the file would not be sufficient to result in hearing loss. He further highlighted that hearing at service enlistment and exit was normal with no evidence of hearing loss. He noted that hearing impairment from noise while in the military would be evident at the time of noise exposure. It was concluded that the Veteran's normal separation audiogram was evidence that he did not sustain hearing loss as a result of his military service. After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss disability is warranted. In this case, post-service VA fee-based audiology examination results dated from March 2007 to March 2010 clearly reflected a bilateral hearing disability for VA benefit purposes. 38 C.F.R. § 3.385. The Board has also considered the Veteran's statements concerning in-service injury as well as his documented duty assignments. 38 U.S.C.A. § 1154(a) (West 2012). The Veteran's reported duties and awards comport with the nature of his MOS and his duty station. In addition, there is no evidence of record demonstrating that the Veteran was not exposed to noise from small arms and artillery fire during active service as asserted. As such, the Board finds the Veteran's report of in-service noise exposure competent and credible evidence. Service treatment records also clearly document that he suffered a head injury with laceration after being hit with a night stick while watching a fight. In view of the totality of the evidence, including the Veteran's documented in-service MOS and head injury, current findings of bilateral hearing loss, the myriad of positive and negative medical opinions of record, and the competent and credible reports of in-service noise exposure and continuous symptoms of decreased hearing since service, the Board finds that the Veteran's current bilateral hearing loss cannot be reasonably disassociated from his military service. The Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for bilateral hearing loss disability is warranted. ORDER As the Board has determined that new and material evidence was received within the appeal period following the November 2005 rating decision denying service connection for bilateral hearing loss disability, the benefit sought on appeal is granted to this extent. Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs