Citation Nr: 1343217 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-18 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active service from August 1985 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho (RO). FINDINGS OF FACT 1. In an April 1992 rating decision, the RO denied the claim for service connection for bilateral hearing loss. The Veteran did not perfect an appeal thereof. 2. Evidence received since the April 1992 rating decision is new and material, as it raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The Veteran's current bilateral hearing loss is related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the April 1992 rating decision, and the Veteran's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Bilateral hearing loss was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans 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). Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the issue of whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss because the Board is reopening the claim and granting service connection for bilateral hearing loss. As such, this decision poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence Claim The Veteran's initial claim seeking service connection for bilateral hearing loss was denied by the RO in April 1992 because the record did not show evidence of hearing loss, to include on a March 1992 VA audiological examination. The Veteran did not perfect an appeal thereof. Thus, the April 1992 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. In January 2010, the Veteran filed the present claim to reopen the issue of entitlement to service connection for bilateral hearing loss. In the March 2010 rating decision, the RO denied reopening the Veteran's claim based on a finding that the Veteran did not submit new and material evidence. Thereafter, in a May 2011 statement of the case, the RO reopened the claim based on the receipt of new and material evidence and denied the claim for service connection for bilateral hearing loss. 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. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Although the RO determined that new and material evidence was presented to reopen the claim of entitlement to service connection for bilateral hearing loss, this decision is not binding on the Board. A claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the April 1992 rating decision is the last final disallowance of the Veteran's claim, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 284 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Comparing the evidence received since the RO's April 1992 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for bilateral hearing loss. The newly submitted evidence includes a May 2010 VA examination report and an October 2012 VA audiogram showing a hearing loss disability as defined by VA regulations in the left ear and right ear, respectively. The newly submitted evidence also includes May 2010 and August 2011 VA medical opinions regarding whether the Veteran's hearing loss is related to in-service noise exposure. Additionally, the evidence of record now includes a May 2010 letter from the Veteran's treating physician who provided a diagnosis of noise induced hearing loss related to the Veteran's military noise exposure. The medical evidence showing left and right ear hearing loss disabilities and a nexus as to whether the claimed disorder is related to service is new evidence, as it was not of record at the time of the April 1992 rating decision. In addition, the evidence is material, as it raises a reasonable possibility of substantiating the Veteran's claim for service connection. Accordingly, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen his claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The claim for entitlement to service connection for bilateral hearing loss is reopened. Service Connection Claim Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 documented hearing loss in service is not fatal to a service connection claim for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Throughout the record and during a June 2013 hearing before the Board, the Veteran has asserted that his hearing loss began during his service in the Army, and has experienced decreased hearing since his military service. He claims that he was exposed to loud noise during his service as a light wheel vehicle mechanic. He also claims to have been exposed to noise from artillery and small weapons fire. The Veteran's service treatment records reflect no complaint, findings, or diagnosis pertinent to hearing loss at the time of his enlistment. The Veteran's January 1985 enlistment physical examination, his his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 0 LEFT 10 5 10 5 10 The Veteran underwent an additional audiological assessment while on active duty in January 1987, at which time his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 20 15 LEFT 25 20 25 35 35 The assessment was mild, high frequency hearing loss in the left ear and normal hearing in the right ear. A June 1989 in-service hearing conservation audiological examination revealed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 30 30 LEFT 20 20 25 25 30 The examiner noted a significant threshold shift in the Veteran's puretone thresholds as compared to his January 1987 audiogram. On a September 26, 1989 audiological evaluation, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 30 20 LEFT 20 20 25 20 30 The Veteran underwent an additional audiological examination on September 29, 1989, at which time his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 40 40 50 LEFT 20 20 25 20 20 The examiner noted a significant threshold shift in the Veteran's puretone thresholds as compared to his January 1987 audiogram. Thereafter, an April 1990 hearing conservation audiological evaluation revealed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 25 25 LEFT 30 25 20 30 25 Following his separation, the Veteran underwent a VA audiological examination in March 1992. The audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 15 30 35 LEFT 5 15 20 15 20 A January 2010 VA treatment record documents the Veteran's report of in-service and post-service noise exposure, as well as experiencing hearing loss for twenty years. At that time he underwent an audiological examination. On the audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 30 35 LEFT 15 15 25 30 25 Speech audiometry revealed speech recognition ability of 100 percent, bilaterally. The Veteran underwent a VA examination in May 2010, at which time the examiner reviewed the evidence of record. The Veteran reported a history of in-service noise exposure from artillery and small arms fire and during his service as a light-wheel mechanic. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 35 35 LEFT 25 20 30 40 30 Speech audiometry revealed speech recognition ability of 94 percentage, bilaterally. The examination resulted in a diagnosis of right ear hearing loss that was not disabling per VA regulations and sensorineural hearing loss in the left ear. 38 C.F.R. § 3.385. Following a review of the evidence of record, the examiner concluded that the Veteran demonstrated hearing within normal limits or left ear hearing loss that would not be considered disabling by VA standards throughout his military service. Id. The examiner acknowledged that examinations conducted in 1989 showed a right ear hearing disability as defined by VA regulations. Id. The examiner stated, however, that this appeared to be mainly in the low frequencies, which is not typical for noise exposure. The examiner further noted that the Veteran's right ear hearing loss resolved according to testing done in 1990 and 1992. A review of the record also showed normal hearing in 1992 and January 2010. The examiner then provided excerpts of pertinent literature that supported the conclusion that it was unlikely that a delayed onset of noise-induced hearing loss occurred. Given this, the examiner opined that it was "less likely as not" that the Veteran's hearing loss in either ear was caused by or a result of his military noise exposure. The examiner then acknowledged that the Veteran's hearing fluctuated during his military service, although this was not considered disabling. The examiner did not discuss the significance, if any of this fluctuation in regards to the Veteran's hearing loss, but attributed the Veteran's tinnitus, at least in part, to this in-service occurrence. In support of his claim, the Veteran submitted an October 2010 letter from his treating physician, who relayed the Veteran's reported history of hearing loss believed to be related to military noise exposure. The physician noted the Veteran's reported history of unprotected, in-service noise exposure from gunfire and due to the Veteran's service as a diesel mechanic. In addition to completing a physical examination of the Veteran, the physician noted his review of the January 2010 audiogram. The physician provided a diagnosis of noise induced hearing loss and opined that given the Veteran's noise history, that it was "more probable than not" that a "very significant" degree of the Veteran's current hearing loss was caused by in-service noise exposure. According to the physician, it is known that cumulative noise exposure early in life can cause later hearing loss, even with a long period of relatively little noise exposure in between. The physician analogized this occurrence to skin cancer that shows up in patients in the 60s, 70s, and 80s, which he stated was probably caused by sunburns as a child or young adult. In August 2011, the May 2010 VA examiner provided an additional opinion regarding whether the Veteran's hearing loss is related to in-service noise exposure. Following a review of the claims file, the examiner reiterated that the Veteran did not have a right ear hearing loss disability as defined by VA regulations but had a left ear hearing loss disability. 38 C.F.R. § 3.385. The examiner noted that the Veteran experienced a decrease in the hearing in his left ear during his military service across all frequencies. The examiner highlighted that hearing loss due to noise exposure typically affects the high frequencies. Again, the examiner highlighted that the Veteran did not have a hearing loss disability in January 2010, approximately eighteen years after his separation. Given the results of the 2010 examination, the examiner opined that it was "less likely than not" that the Veteran's left ear hearing loss was caused by or the result of military noise exposure. The record also includes an October 2012 VA audiological examination that revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 30 40 LEFT 25 25 30 35 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Having reviewed the foregoing, the Board finds that service connection for bilateral hearing loss is warranted. Both the May 2010 VA examination report and the October 2012 VA audiological report show hearing loss as defined by VA regulations in both the left ear and right ear, respectively, during the pendency of the appeal. Thus, the evidence shows a bilateral hearing loss disability during the pendency of the appeal. The Board acknowledges that there is conflicting evidence regarding a nexus between the Veteran's current hearing loss and his military service. In providing opinions in this case in May 2010 and August 2011, the VA examiner appeared to rely, at least in part, on the lack of evidence showing hearing loss in the left ear during service as the basis of the negative etiology opinion. The Board finds that this opinion is not probative as it stands in contrast with statute and regulations service connection for hearing loss may be granted even when a hearing loss is not shown in service or demonstrated upon discharge from service. See 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303; Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, the VA opinions do not adequately address whether the fluctuations shown in the Veteran's hearing thresholds in service are related to his current hearing loss. In contrast, the Veteran's treating physician, in the October 2010 letter, related his hearing loss to his military noise exposure based on a clinical examination, a review of the January 2010 audiogram, and the Veteran's history of in-service noise exposure. The physician also provided rationale to support the favorable opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, when the Veteran's statements, service treatment records and positive medical opinion are considered, the Board finds that the evidence is at least in equipoise, and concludes that service connection for bilateral hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs