Citation Nr: 1514632 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 10-31 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss, and if so, entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from April 1972 to April 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the St. Paul, Minnesota Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied the Veteran's request to reopen a previously denied claim for service connection for bilateral hearing loss. FINDINGS OF FACT 1. The Veteran did not file a notice of disagreement with an October 2006 rating decision denying service connection for bilateral hearing loss. No new and material evidence was received within a year after that rating decision. No service department records not previously associated with the claims file have been received. 2. Evidence received since the October 2006 rating decision addresses the question of whether the Veteran had hearing loss at separation from service. 3. Auditory thresholds did not have significant shifts during service. 4. Bilateral hearing loss found long after service is not attributable to acoustic trauma during service. CONCLUSIONS OF LAW 1. The October 2006 rating decision denying service connection for bilateral hearing loss is a final decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 2. Evidence received since the October 2006 rating decision is new and material to a claim for service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156. 3. Bilateral hearing loss was not incurred or aggravated in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). In this case, the Board is granting reopening of a previously denied claim for service connection for hearing loss. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating his request to reopen that claim. VA provided the Veteran notice in a letter issued in August 2006, before the October 2006 rating decision denying service connection for hearing loss. In that letter, VA advised the Veteran what information was needed to substantiate claims for service connection. The letter also informed the Veteran how VA assigns disability ratings and effective dates. The Veteran's claims file contains service treatment records, post-service treatment records, and reports of VA examinations. The VA examination reports contain relevant findings that are sufficient to allow adjudication of the service connection claim. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Request to Reopen Previously Denied Claim In July 2006, the Veteran submitted a claim for service connection for hearing loss and tinnitus. In an October 2006 rating decision, the RO granted service connection for tinnitus, and denied service connection for bilateral hearing loss. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C.A. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C.A. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). During the year following the October 2006 rating decision, the Veteran did not file an NOD with that decision. That decision became final. No new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. In February 2009, the Veteran requested to reopen a claim for service connection for hearing loss. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The only final disallowance on any basis of the Veteran's claim for service connection for hearing loss is the October 2006 rating decision. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156(a). The Court has 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, supra, at 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 evidence in the claims file in October 2006 included the Veteran's claim, his service medical records, and the report of a VA medical examination. The Veteran reported that he was exposed to an extremely loud noise from the explosion of a grenade a short distance away during service. He stated that when he was examined for separation from service, the physician told him that he had lost quite a bit of his hearing. A VA clinician who examined the Veteran in October 2006 found that he had bilateral sensorineural hearing loss. The examiner, however, expressed the opinion that the hearing loss was not caused by noise exposure in military service. The evidence added to the claims file after October 2006 includes statements and arguments from the Veteran and his representative, and clinical opinions regarding the likely etiology of his hearing loss. The Veteran provided additional information about the incident in which a grenade exploded near him. He contended that the grenade explosion was the primary cause of his current hearing loss. In a February 2015 brief, the Veteran's representative noted that, in the report of the February 1975 examination of the Veteran for separation from service, the examiner entered a diagnosis of bilateral high frequency hearing loss. The October 2006 rating decision listed some of the auditory thresholds in the February 1975 separation examination report, but was silent as to that examiner's diagnosis of hearing loss. Thus, it appears that the rating official reviewed the examination report. The separation examiner's diagnosis of hearing loss diagnosis, however, was not addressed in the rating decision, and addressed a fact necessary to substantiate the claim for service connection for hearing loss. The fact of hearing loss diagnosis at separation from service, if established, would enable rather than preclude reopening of the claim. Considering additional detail about the noise exposure in service, and the recent highlighting of the hearing loss diagnosis at separation, the Board finds that information presented since October 2006 is new and material to the claim. The Board therefore grants reopening of a claim for service connection for hearing loss. Service Connection Having reopened the claim, the Board must consider the service connection claim on its merits. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For VA disability benefits purposes, impaired hearing is 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. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of a veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. Records of testing of the Veteran's hearing during service show auditory threshold testing, but no speech recognition testing. He had an examination in April 1972 for entrance into service. The examination report contains results of audiological testing showing thresholds in the right ear at 500, 1000, 2000, and 4000 Hertz as follows: 15, 0, 5, and 5 decibels, respectively. In the left ear the thresholds reported at those levels were 20, 5, 5, and 5 decibels respectively. The service medical records also contain an undated audiogram card of test results for the Veteran. That card shows thresholds the same as those reported in the April 1972 examination report. The card also shows the thresholds at some frequencies not reported on the examination report. Specifically, it shows at 3000 Hertz thresholds of 0 decibels in the right ear and 5 decibels in the left ear, and at 6000 Hertz thresholds of 5 decibels in the right ear and 5 decibels in the left ear. In the report of a February 1975 examination of the Veteran for separation from service, audiological testing results are filled in for the thresholds of 500, 1000, 2000, 3000, 4000, and 6000 Hertz. In the right ear, the thresholds were 10, 5, 0, 5, 10, and 50 decibels respectively. In the left ear, they were 15, 10, 5, 15, 10, and 35 decibels respectively. In the section for defects and diagnoses, the examiner wrote, "BILATERAL HIGH FREQUENCY HEARING LOSS" [capitals in original]. The claims file does not contain any evidence regarding the Veteran's hearing levels during the year following his separation from service. Therefore, there is no basis to presume service connection for sensorineural hearing loss. The Veteran has reported that his duties in service were as a records clerk. His service separation record indicates that his specialty was records specialist. In an October 2006 VA audiology examination, audiological thresholds in the right ear at 500, 1000, 2000, 3000 and 4000 Hertz were 5, 10, 15, 65, and 80 decibels, respectively. In the left ear the thresholds were 10, 10, 30, 55, and 60 decibels respectively. Speech recognition scores using the Maryland CNC Test were 96 percent in the right ear and 100 percent in the left ear. The examining audiologist stated that, based on careful questioning, she found that the Veteran believed that he was initially aware of his tinnitus while he was in service. She opined that it is plausible that noise exposure in service caused his tinnitus without concurrently causing any significant permanent hearing loss. She expressed the opinion that the Veteran's hearing loss was not caused by noise exposure in service. She noted his post-service noise exposure at work and outside of work. In a February 2009 statement, the Veteran noted that the clinician who examined him at separation from service commented that he had lost a lot of hearing. In April 2009, he stated that during training in service a trainee failed to throw a grenade, and instead dropped it just on the other side of a barrier wall. He reported that he was very close to the explosion. He asserted that his tinnitus and hearing problems began at that time. The RO asked the audiologist who performed October 2006 examination to review the cause of the Veteran's hearing loss, with consideration of the Court's Hensley decision. In May 2010, that audiologist provided an addendum to the examination report. She noted the audiological test results from the service entrance and separation examination reports. She stated that the discharge thresholds at 6000 Hertz could not be compared with enlistment thresholds because that frequency was not tested at enlistment. She repeated the opinion that the Veteran's hearing loss was not caused by noise exposure during service. She again noted that after service he had extensive noise exposure without hearing protection. In June 2011, the RO provided the Veteran's claims file to a VA physician to review. The RO asked the reviewer to consider previous VA audiology examinations and opinions, and to provide clarification and more thoroughly explained rationale. The reviewer noted the results of testing in service in 1972 and 1975. The reviewer found that the Veteran's current bilateral hearing loss was not due to his military acoustical trauma. The reviewer explained that the Veteran's hearing at separation from service was normal by VA standards, and that during service there was no shift in his hearing that was significant by VA standards. The examiner further explained that studies had sufficiently shown that the most pronounced effects of noise exposure are measurable immediately after the exposure. He indicated that current science showed that a delay of many years between noise exposure and the onset of noise-induced hearing loss is extremely unlikely. Here, the greater weight of the competent evidence is against a connection between the noise exposure in service and the hearing loss disability found many years after service. The service treatment records do not show a hearing loss disability for VA purposes and the VA clinicians who have reviewed the evidence have come to a similar conclusion. In addition, there are not audiologic test results showing a hearing loss disability until many years after service discharge. Moreover, both the 2006 examiner and the 2011 reviewer concluded that the evidence is against a connection between the acoustic trauma during in service and the hearing loss found in testing in 2006. The 2011 reviewer provided a thorough and convincing explanation of this opinion. Other than the Veteran's lay contentions, there is no competent medical opinion evidence in support of the claim. The Board therefore denies service connection for the current hearing loss. ORDER A claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs