Citation Nr: 1740887	
Decision Date: 09/20/17    Archive Date: 10/02/17

DOCKET NO.  13-35 946	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse




ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1980 to November 1982

These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

In August 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A copy of the hearing transcript is of record and has been reviewed.


FINDINGS OF FACT

1.  An April 2009 rating decision denied service connection for bilateral hearing loss.  The rating decision was not appealed nor was new and material evidence received within the appeal period.

2.  The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating that claim.

3.  The Veteran was exposed to acoustic trauma during active military service.

4.  Affording the Veteran the benefit of the doubt, his bilateral hearing loss is related to acoustic trauma during active military service.

CONCLUSIONS OF LAW

1.  The April 2009 rating decision that denied service connection for bilateral hearing loss is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016).

2.  New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

3.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. § 1101, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).

Given the favorable disposition of the claims, the Board finds that all notification and development action needed to fairly adjudicate these claims has been accomplished.

II.  New and Material Evidence

Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A (West 2014) shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108 (West 2014).  See 38 U.S.C.A. § 5103A(f) (West 2014).  Reopening a claim for service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996).

New evidence means existing evidence not previously submitted to VA.  38 C.F.R. § 3.156(a) (2016).  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.  Id.  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.  

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) (2016) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2014).  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).

In reviewing the evidence added to the claims folder since the April 2009 denial, the Board finds that additional evidence has been received which is sufficient to reopen the Veteran's claim.  At the time of the April 2009 denial, the Veteran did not have a positive nexus opinion for his bilateral hearing loss.  In January 2011, the Veteran's private hearing instrument specialist (HIS) wrote that upon evaluating the Veteran's case history, it was his opinion that the Veteran's hearing loss was a result of exposure to noise while in the military.  Additionally, in his August 2016 hearing, the Veteran testified that his Military Occupational Specialty (MOS) was in the infantry, and that he had experienced acoustic trauma from firing rifles, pistols, machine guns, mortars, artillery, grenades, and more.  The Veteran and his spouse testified that he had hearing difficulties ever since leaving active service.  This evidence was not before the RO in April 2009 and it is not cumulative or redundant evidence then of record.  It raises a reasonable possibility of substantiating the Veteran's claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that 38 C.F.R. § 3.156(b) (2016) contemplates additional development following reopening a claim in order to substantiate the claim).  Accordingly, the Board finds that new and material evidence has been added to the record since the April 2009 decision and the claim must be reopened.

III.  Legal Criteria

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. 
§ 1131 (West 2014)); 38 C.F.R. § 3.303(a) (2016).  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) (2016).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Under 38 C.F.R. § 3.385 (2016), disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 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 (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

The Board notes that the U.S. Court of Appeals for Veterans Claims has stated that the proper inquiry in hearing loss cases is "whether or not any current hearing disability can be related to in-service noise exposure, not whether hearing loss was demonstrated in service."  See Hensley v. Brown, 5 Vet. App. 155, 164 (1993).  Additionally, the Board notes that the absence of documented hearing loss or tinnitus while in service is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

IV.  Analysis

The Veteran contends that service connection is warranted for his bilateral hearing loss due to acoustic trauma during active duty service.  Affording the Veteran the benefit of the doubt, the Board agrees.

The Veteran satisfies the first threshold element of service connection, a current disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In a November 2013 VA examination report, the Veteran was diagnosed with bilateral sensorineural hearing loss.  38 C.F.R. § 3.385.

Affording the Veteran the benefit of the doubt, he satisfies the second threshold element of service connection, an in-service incurrence or aggravation of a disease or injury.  Id., 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).  According to the Veteran's DD Form 214, his MOS was in the infantry.  In the November 2013 examination report, the examiner noted that the Veteran worked in infantry (mortarman around tanks).  The examiner reported that the "level of probability of exposure to hazardous noise conceded is "Highly Probable" based on the Duty MOS Noise Exposure Listing..."  As such acoustic trauma during active service is conceded.

Affording the Veteran the benefit of the doubt, he satisfies the third threshold element of service connection, a nexus between the claimed in-service disease or injury and the present disability.  Id.  As noted above, in a January 2011 letter, the Veteran's private audiology HIS wrote that "upon evaluating case history, it is my opinion that the hearing loss... [was] a result of exposure to noise while in the military."

In a November 2013 VA examination report, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
50
60
LEFT
20
20
20
40
60

The Veteran's speech recognition scores were 96 percent for the right ear and 96 percent for the left ear.  This constitutes a hearing loss for VA purposes.  The examiner reported the Veteran had bilateral sensorineural hearing loss.

The examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of an event in military service.  The rationale was that the Veteran's enlistment and separation examinations showed normal hearing in each ear for 500 Hz to 4000 Hz, with no significant shift in hearing between the two tests for the ratable frequencies.  

As noted above, the Court has stated that the proper inquiry in hearing loss cases is "whether or not any current hearing disability can be related to in-service noise exposure, not whether hearing loss was demonstrated in service."  See Hensley v. Brown, 5 Vet. App. 155, 164 (1993).  Additionally, the Board notes that the absence of documented hearing loss or tinnitus while in service is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  As a result, the Board finds that the November 2013 VA examination opinion to be inadequate and of minimal probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Additionally, the November 2013 VA examiner noted that the Veteran's now service-connected tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss, as tinnitus is known to be a symptom associated with hearing loss.  

Although an etiological relationship has not been demonstrated through the foregoing VA opinion, nor otherwise shown through a medical opinion by an audiologist, the absence of a "valid medical opinion" is not an absolute bar to service connection.  Davidson v. Shinseki, 581 F.3d at 1316.  Additionally, the Board finds that the lay statements of record, along with the Veteran's testimony as to the etiology of his hearing loss, to be competent and credible evidence of continuing symptoms since service.  A veteran's lay statements may be sufficient evidence in any claim for service connection.  38 C.F.R. § 3.303(a) (2014) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."  See 38 U.S.C. § 1154(a) (West 2014) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").

Affording the Veteran the benefit of the doubt, the Board finds that the January 2011 letter from the Veteran's private audiology HIS, finding a positive nexus between the Veteran's hearing loss and active service, combined with the lay statements of record and the Veteran's own testimony, leads the Board to determine that it is at least as likely as not that the Veteran's current bilateral hearing loss was incurred during active service, and service connection is warranted.  Additionally, because the Veteran was already granted service-connection for tinnitus in a November 2013 rating decision, and the examiner in the November 2013 VA examination report noted that the Veteran's tinnitus was at least as likely as not due to his hearing loss, service connection for hearing loss is also warranted on the basis that for tinnitus to be due to hearing loss, the hearing loss must have existed during active service when tinnitus first manifested.

Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.385 (2016).


ORDER

New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened, and to that extent only, the appeal is granted.

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs