Citation Nr: 1419294 Decision Date: 05/01/14 Archive Date: 05/16/14 DOCKET NO. 11-07 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for hearing loss in the right ear. 2. Entitlement to service connection for hearing loss in the right ear. 3. Entitlement to service connection for hearing loss in the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Marotta INTRODUCTION The Veteran served on active duty from October 1970 to June 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Roanoke, Virginia has jurisdiction over this matter. In March 2013, the Veteran presented testimony before the undersigned Veterans' Law Judge at the RO in Roanoke, Virginia. A transcript has been associated with the claims file. FINDINGS OF FACT 1. In a December 1982 rating decision, the RO denied the Veteran's claim for service connection for hearing loss in the right ear; the Veteran did not timely perfect an appeal. 2. Evidence received since the December 1982 rating decision raises a reasonable possibility of substantiating the claim for service connection for hearing loss in the right ear. 3. Bilateral hearing loss was not present until many years after service. 4. The preponderance of the evidence weighs against a finding that the Veteran's current hearing loss in the right ear is related to acoustic trauma sustained in service. 5. The preponderance of the evidence weighs against a finding that the Veteran's current hearing loss in the left ear is related to acoustic trauma sustained in service. CONCLUSIONS OF LAW 1. The December 1982 rating decision is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. As pertinent evidence received since the December 1982 denial is new and material, the criteria for reopening the claim for service connection for hearing loss in the right ear are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for hearing loss in the right ear have not been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013). 4. The criteria for service connection for hearing loss in the left ear have not been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). For claims that have been finally denied, VA must inform the claimant of the unique character of the evidence that must be presented to reopen that claim because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The Secretary must look at the bases for the denial in the prior decision and provide the claimant with notice of what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The duty to notify was satisfied via a letter sent to the Veteran in December 2008. The duty to assist has also been satisfied. VA has obtained the Veteran's service treatment records and VA medical records identified by the Veteran as relevant to the appeal. The Veteran was also afforded VA examinations in April 2011 and August 2012. The August 2012 VA examination is sufficient, as the examiner considered the Veteran's statements, offered explanations for the opinions stated, and provided the information necessary to resolve the issues on appeal. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claims at this time. II. New and Material Evidence The Veteran was initially denied service connection for hearing loss in the right ear in a December 1982 rating decision, on the grounds that right ear hearing loss was not shown by the evidence of record. The Veteran did not perfect an appeal and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record as of the December 1982 decision included the Veteran's service treatment records and the Veteran's personal statement that his right ear hearing loss started in service. Evidence received since the December 1982 decision includes VA treatment records and the Veteran's personal statement that he experienced acoustic trauma during service. This evidence is new because the Veteran's VA treatment records provide a current diagnosis of bilateral hearing loss. The new evidence is material because it supports the Veteran's claim for service connection by arguing that acoustic trauma in service caused his current hearing loss. The Board finds that the new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the claim for service connection for hearing loss in the right ear is reopened. To that extent only, the appeal is allowed. III. Service Connection Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). IV. Bilateral Hearing Loss The Veteran attributes his current bilateral hearing loss to acoustic trauma experienced during service as an infantryman in Vietnam. Specifically, the Veteran argues that he was near a mine explosion. He asserts that the acoustic trauma that he experienced in service caused his hearing loss to develop over time and believes that service connection is warranted. Although the Veteran has a current diagnosis of bilateral hearing loss, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's current hearing loss is related to acoustic trauma sustained in service. First, the Veteran is not entitled to service connection on a presumptive basis because the evidence does not reflect that his bilateral hearing loss manifested in service or within one year of separation from service. Service treatment records indicate that the Veteran complained of a left ear ache in August 1971. The examiner noted a small posterior perforation and otorrhea; the examiner prescribed ampicillin. Aside from this incident, the Veteran's service treatment records do not document any reports of hearing difficulties or problems with the Veteran's ears. Specifically, the Veteran's service treatment records contained the following audiometric test results: HERTZ RIGHT 500 1000 2000 3000 4000 6000 October 1967 0 -5 0 5 0 15 August 1970 5 5 5 5 May 1972 0 0 0 0 HERTZ LEFT 500 1000 2000 3000 4000 6000 October 1967 0 -5 10 5 -5 15 August 1970 5 5 5 5 May 1972 0 0 0 0 VA treatment records indicate that the Veteran was diagnosed with bilateral hearing loss in October 2010, which is more than 38 years after his separation from service. Notes indicate that the Veteran was prescribed hearing aids, but that he does not use them because he experienced ear pain. In an April 2011 VA examination, the examiner acknowledged the Veteran's reports of noise exposure in a combat zone and as a result of a mine explosion. The Veteran indicated that he first noticed hearing loss in 1968. The Veteran denied occupational noise exposure after service. The Veteran reported having occasional ear infections and ear pain associated with headaches and vertigo. Based on the Veteran's records and examination, the examiner diagnosed the Veteran with bilateral hearing loss and opined that the Veteran's hearing loss was less likely than not related to noise exposure in service. The examiner noted that the Veteran had a normal hearing profile at the time of his separation from service. In August 2012, the Veteran presented for another VA examination. The examiner diagnosed the Veteran with bilateral hearing loss and opined that the Veteran's hearing loss was not at least as likely as not related to noise exposure in service. The examiner noted that audiometric testing on the Veteran's separation examination showed that his hearing was within normal limits in both ears. The examiner also noted that the Veteran's separation examination showed no significant worsening of hearing when compared to his induction hearing examination. The examiner explained that hearing loss due to noise exposure occurs at the time of exposure and not subsequently. During his March 2013 hearing, the Veteran argued that his PTSD examinations confirm his noise exposure in service. The Board notes that the Veteran is competent to report his in-service noise exposure and finds his report credible. However, in-service noise exposure is not at issue in this case. At issue is whether the Veteran's in-service noise exposure is related to his current bilateral hearing loss. The Board also notes that during his April 2011 VA examination and his March 2013 hearing, the Veteran reported that he first noticed hearing loss in 1968. While the Veteran is competent to report the onset of his hearing loss, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous evidence of record. Charles v. Principi, 16 Vet. App. 370 (2002). The evidence of record includes the absence of an in-service diagnosis or notation of complaints of hearing loss and the absence of any post-service history, and no diagnosis or treatment of hearing loss for approximately 38 years after service. This evidence tends to show that the Veteran's hearing loss disability did not have its onset during his active service. While the Veteran has offered his own opinion on the etiology of his hearing loss, determining the precise etiology of hearing loss is not a simple question, as there are multiple potential etiologies of the Veteran's hearing loss. Determining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinions of the experts that carefully considered the specific facts of this case. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). To the extent that the Veteran argues that the August 2012 VA examiner's rationale is invalid because it is based it on the Veteran's normal hearing during service and at separation, the Board finds that the VA examiner's opinion is adequate because, in forming his opinion, the examiner considered the Veteran's service treatment records, the Veteran's lack of treatment for or complaints of hearing problems in service, his lack of treatment for 38 years after service, and his examination. The Board finds that this is an adequate opinion based on medical analysis of the evidence of record. Based on the foregoing, the Board finds the weight of the evidence is against the claims; there is no doubt to be resolved. The only adequate medical opinion of record regarding nexus is negative. As the preponderance of the evidence is against the claims, the claims are denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER As new and material evidence has been received, the claim for service connection for hearing loss in the right ear is reopened and to that extent the claim is granted. Entitlement to service connection for hearing loss in the right ear is denied. Entitlement to service connection for hearing loss in the left ear is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs