Citation Nr: 1624190 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 13-03 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen 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 Appellant ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's application to a reopen previously denied claim for service connection but subsequently denied the service connection claim. The Veteran testified during a hearing before the undersigned VLJ in April 2016. FINDINGS OF FACT 1. A March 1985 decision that denied service connection for bilateral hearing loss is final. 2. New and material evidence has been received since the last final denial of the claim for service connection for bilateral hearing loss. 3. The weight of the evidence is against finding a nexus between the Veteran's current hearing loss disability and service. CONCLUSIONS OF LAW 1. Evidence received since the March 1985 decision is new and material to reopen a claim of service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence The Veteran is seeking to reopen a previously denied claim to service connection for bilateral hearing loss. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. First, however, the prior decision must be final. The March 1985 decision denied service connection for hearing loss. There was no Notice of Disagreement filed within a year nor any additional evidence submitted after the decision. Therefore, this decision was final. In this instance, the Veteran submitted a private medical opinion from October 2010 that concluded that the Veteran's military service directly contributed to his current hearing loss disability. The prior decision is final, there is new and material evidence and therefore the claim must be re-opened. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). In general, service connection requires competent and credible 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further concerning claims for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Impaired hearing, however, only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 Veteran indicates that he was exposed to noise during basic training as well as advanced infantry training. He also has 18 weeks of armor Officer Candidate School where he was also exposed to noise from tank and machine guns. Service treatment records indicate audiograms were conducted at entrance, during service and at separation from service. His September 1966 entrance audiogram revealed findings within the normal threshold. An October 1966 audiogram also revealed findings within the normal threshold. He then had a 1967 audiogram which showed a threshold shift to 35 in both ears at 4000 hertz. His September 1968 separation audiogram, however, showed that his hearing returned to the same normal thresholds found in his entrance examination. The Veteran testified that he does not remember hearing loss occurring during service. He testified that he remembers having an audiogram in 1985 when he initially filed his claim. He also stated that he worked in construction after service but almost exclusively as a caulker. He did mainly remedial work where he would not be surrounded by building construction. Therefore, he asserts that his occupation after the military had minimal noise exposure. The Veteran has two recent audiograms in October 2010 and March 2011 which document a current moderate to severe hearing loss disability. These two examinations, however, differ on their opinions as to whether there is a nexus between the Veteran's current hearing loss disability and his exposure to noise in service. The March 2011 VA examination notes that the Veteran had mild hearing loss in service at his May 1967 audiogram but that loss was resolved by the time of separation. The VA examiner noted that there is currently no sufficient scientific basis for the existence of delayed onset hearing loss. The examiner thus concluded that it was less likely than not that the Veteran's current hearing loss is a result of acoustic trauma in service. The October 2010 private examination opined that the Veteran's noise exposure "has had a direct contribution to his hearing loss". However, there is no rationale or scientific basis cited for this opinion. The Veteran satisfies both element (1) and (2) for service connection for bilateral hearing loss. He has a current hearing loss disability and he also was exposed to noise in service. The weight of the evidence, however, is against finding a nexus between the Veteran's in-service noise exposure and current hearing loss disability. There was a slight threshold shift in service at the 4000 hertz level but that was resolved by separation. Moreover, there was no cited basis for the proposition that the Veteran would have delayed onset hearing loss. Finally, there is no evidence either lay or medical that supports the occurrence of hearing loss within a year after service. Additionally, the Veteran has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the nexus between his noise exposure in service and his current hearing loss disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes that the Veteran also submitted treatise evidence. The Veteran submitted a 2006 study from the Institute of Medicine that actually supports the presumption that there is no evidence of delayed onset of noise-induced hearing loss. The Veteran also submitted a November 2009 article from the Journal of Neuroscience. This article, however, does not speak specifically to the facts at hand. Additionally, there is no medical opinion linking the studies in that article to the Veteran's hearing loss disability. Therefore, element (3) is not satisfied. III. The Duties to Notify and Assist When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in a November 2010 letter. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which, contained a description of the history of the disability at issue; documented and considered the relevant medical facts and principles; and recorded the relevant findings for his bilateral hearing loss. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs