Citation Nr: 1534800 Decision Date: 08/14/15 Archive Date: 08/20/15 DOCKET NO. 13-18 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1998 to November 2000 and from March 2009 to November 2009. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran was provided a May 2015 hearing via video teleconference before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. A March 2008 rating decision denied service connection for bilateral hearing loss. The Veteran did not appeal the rating decision and it became final. 2. The evidence associated with the claims file subsequent to the March 2008 rating decision relates to an unestablished fact necessary to substantiate the claim, and thus raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. Bilateral hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. The March 2008 rating decision, which denied service connection for bilateral hearing loss, became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2015). 2. The criteria for reopening the claim for service connection for bilateral hearing loss are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a). As the Board is granting the claims, no further discussion of the duties to notify and assist is necessary. Legal Criteria to Reopen Service Connection Prior unappealed decisions of the Board and the RO are final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1100, 20.1103, 20.1104 (2015). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). The Veteran's claim for service connection for bilateral hearing loss was previously considered and denied by the RO in a March 2008 rating decision, on the basis that the Veteran's hearing loss did not meet the criteria for a hearing loss disability under VA regulations. See 38 C.F.R. § 3.385. The Veteran was notified of that decision and of his appellate rights. The Veteran did not appeal the decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence submitted since the March 2008 rating decision became final includes private audiometric findings of March 2013 which indicate a current hearing loss disability for VA purposes, and an April 2015 statement of Dr. J.L., an audiologist, which opines that hearing loss is due to noise exposure in service. In determining whether newly received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When credibility is presumed, as is required when determining solely whether to reopen a previously denied claim, the aforementioned evidence suggests a current disability and a nexus between the current disability and service. As this represents evidence not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claims, the Board finds that the additional evidence is new and material to reopen service connection for bilateral hearing loss. Service Connection for Bilateral Hearing Loss In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has hearing loss as a result of acoustic trauma during service. His DD 214 shows that his MOS at separation in 2000 and 2009 was infantryman. At the May 2015 Board hearing, he testified that he experienced extreme acoustic trauma while in service from helicopters and firing guns. He stated that he was issued hearing protection but that it would often fall out during training exercises. He further testified that he did not seek treatment immediately after separation, but asserts that he has noticed a decline in his hearing acuity ever since separation. The Veteran's lay statements regarding acoustic trauma are competent and credible. Resolving reasonable doubt in favor of the appellant, the Board finds that he was exposed to the reported acoustic trauma in service. A September 2009 hearing conservation worksheet compared three current audiograms with an audiogram of July 2000. The audiologists noted that there were significant threshold shifts in all frequencies. The threshold shifts ranged from 5 to 30 decibels. Post-service audiometric findings of March 2013 show that the Veteran has a hearing loss disability for VA purposes. A May 2013 VA examination reported the Veteran's dates of service as July 1998 to November 2000. The examiner opined that it is less likely than not that the current hearing loss disability is related to service. The rationale was that the current hearing loss "is probably secondary to his Meniere's disease, which is known to be associated with tinnitus and hearing loss. Also the configuration of the audiogram, which shows hearing loss in the lower frequency range without evidence of high-frequency hearing loss is not typical for noise exposed hearing loss but rather more typical of Meniere's disease. In conclusion, the Veteran's presented audiogram showing mild hearing loss in both ears are likely related to Meniere's disease, which is not likely to be a service-connected condition and definitely is not typical of noise exposure hearing loss." An April 2015 statement from the Veteran's private audiologist, Dr. J.L., opines that hearing loss is related to service. Dr. J.L. explains that, "[the Veteran] was in the infantry and exposed to loud weapons as well as engine noise, jet engine noise, and helicopter noise mostly with hearing protection. He reports sometimes the ear plugs would fall out during live fire exercises and reports some ringing after these situations. He reports little to no noise exposure while not in the service as he was either in school or in an office setting working in IT. His C and P exam from 2013 reports no shift noted from his entrance to exit exam but only uses his service time through 2000. After review of his hearing history records there is a significant shift of at least 15 dB in hearing sensitivity in both ears from his entrance exam in 1998 to his exit exam in September 2009. Therefore, it is my opinion that [the Veteran's] hearing impairment is at least as likely as not (50\50 probability) caused by or a result of military noise exposure." At the very least, the Board finds the evidence is in equipoise. Resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. 38 U.S.C.A. § 5107 (West 2014). ORDER New and material evidence having been received, the appeal to reopen service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs