Citation Nr: 1751378 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-03 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. 2. Entitlement to service connection for hearing loss. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In his January 2017 substantive appeal, the Veteran requested a Board hearing via videoconference. He was scheduled for a hearing in July 2017, but notified the RO in a May 2017 written statement that he would not appear for the scheduled hearing. Neither the Veteran nor his representative has requested that the hearing be rescheduled. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An April 2013 rating decision declined to reopen the Veteran's claim for entitlement to service connection for hearing loss; and the Veteran did not appeal that decision in a timely manner nor was any new and material evidence submitted within the appeal period. 2. Evidence added to the record since the final April 2013 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hearing loss. 3. The preponderance of the evidence weighs against a finding that the Veteran's current bilateral hearing loss is related to service. CONCLUSIONS OF LAW 1. The April 2013 rating decision that declined to reopen a claim of entitlement to service connection for hearing loss is final. 38 U.S.C.A. § 7105(c) (2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence having been received, the claim for entitlement of service connection for hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156(a) (2017). 3. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111, (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] 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 ]." 38 U.S.C.A. § 5103A(f). Reopening a claim for service connection which 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; 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. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. 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 law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In March 2012, the Veteran filed his original claim for entitlement to service connection for hearing loss. The RO denied the claim in an April 2013 rating decision finding that this condition neither occurred in nor was caused by service. The Veteran did not submit any evidence within one year of the April 2013 rating decision, nor did he file a timely appeal to the April 2013 rating decision. Therefore, it is final. 38 U.S.C.A. § 7105(c) (2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Veteran filed a claim to reopen his claim for service connection for bilateral hearing loss in July 2014. The October 2014 rating decision on appeal denied the claim to reopen. The basis of the April 2013 prior final denial was the RO's findings that there was no link between the Veteran's current bilateral hearing loss and his military service. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the April 2013 rating decision that addresses this basis. Evidence submitted and obtained since the April 2013 rating decision includes VA treatment records and lay evidence. In particular, in a December 2014 written statement, the Veteran provided lay statements that while serving in Vietnam, he was exposed to noise from firing two very large cannons that were approximately 50 feet long from a close distance. He described that the blast almost knocked him down and he could not hear out of his ears for a while. He claimed that from that moment on his hearing was impaired. Without addressing the merits of this evidence, the Board finds that the additional evidence addresses whether the Veteran's currently diagnosed bilateral hearing loss may be related to his service, and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim. The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for hearing loss since the April 2013 rating decision. On this basis, the issue of entitlement to service connection for bilateral hearing loss is reopened. Service Connection Establishing service connection generally 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 link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a), (including sensorineural hearing loss and tinnitus) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within one year from the date of separation from service. Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran seeks service connection for bilateral hearing loss, which he attributes to in-service noise exposure. In a March 2012 written statement, he indicated he was exposed to loud noise from gun fire while serving in the military. In a December 2014 written statement, the Veteran provided lay statements that while serving in Vietnam, he was exposed to noise from firing two very large cannons that were approximately 50 feet long from a close distance. He described that the blast almost knocked him down and he could not hear out of his ears for a while. He claimed that from that moment on his hearing was impaired. For VA purposes, impaired hearing will be 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 threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Here, the Veteran's service treatment records do not show that he had any complaints of or treatment for hearing loss during service. At his August 1965 enlistment and August 1967 separation examinations, clinical evaluations of the ears were normal. The results of the Veteran's August 1965 audiometric testing puretone thresholds, in decibels and converted to ISO (ANSI) units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 15 5 10 LEFT 10 5 20 5 5 On an August 1967 Report of Medical History, the Veteran answered "no" to whether he "ever had or have you now" ear trouble or hearing loss. The Veteran had an audiological evaluation at separation in August 1967, at which time auditory thresholds were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 / 5 LEFT 0 5 5 / 0 However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 / 10 LEFT 15 15 15 / 5 The Veteran was afforded an audiological evaluation in October 2012. The examination report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 50 55 75 LEFT 35 40 65 70 80 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 70 percent in the left ear, using the Maryland CNC word list. The Veteran stated he served as a ground pounder which required him to do a lot of walking. He was exposed to noise from rifle and big gun fire. He reported a specific incident in which a big gun fired next to his right ear, and stated he could not hear for a long time from that ear. He had no hearing protection in service. As to occupational and recreational noise exposure, the Veteran worked as a crane operator but stated it was not a noisy crane; he went hunting over 40 years ago. The examiner diagnosed bilateral sensorineural hearing loss, and concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted that the Veteran's induction physical dated August 12, 1965 reveals normal thresholds from 500 Hz through 6000 Hz, bilaterally, and his separation physical dated August 20, 1967 reveals normal thresholds from 500 Hz through 4000 Hz, bilaterally, with no significant threshold shifts. The examiner reasoned that considering the normal and stable thresholds throughout military service, the Veteran's current hearing loss was not related to military noise exposure. Another VA examination was conducted in September 2014. The examination report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 65 70 70 LEFT 50 55 65 70 75 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 82 percent in the left ear, using the Maryland CNC word list. The examiner reviewed the Veteran's claims file and noted the Veteran served in the infantry and had noise exposure from weaponry (M14, cannons) and incoming fire, with no hearing protection. As a civilian, he worked as a heavy duty crane operator for 39 years, with no hearing protection. He rarely participated in the hobby of hunting. The Veteran began to experience hearing loss shortly after returning from Vietnam and had difficulty hearing soft speech. The examiner opined that the Veteran's bilateral hearing loss is less likely than not the result of military noise exposure. In providing this opinion, the examiner noted the Veteran's normal hearing at enlistment and separation with no significant decrease and his civilian employment noise exposure history. After reviewing the medical evidence, the Board finds that service connection for bilateral hearing loss is not warranted on a direct basis. There is competent, credible evidence that the Veteran currently has bilateral hearing loss. The VA examination report shows a diagnosis of bilateral sensorineural hearing loss in accordance with 38 C.F.R. §3.385. There is also evidence that the Veteran had military noise exposure in service. The Board notes that the Veteran's military occupational specialty (radio operator), as well as the circumstances of serving in Vietnam, is consistent with his report of noise exposure. Therefore, in-service noise exposure is conceded. 38 U.S.C.A. § 1154(a). However, there is no evidence linking the Veteran's hearing loss to service, to include military noise exposure. The Veteran's service treatment records are silent for any complaints or diagnosis of hearing loss. At his August 1965 enlistment and August 1967 separation examinations, clinical evaluations of the ears were normal and audiometric testing showed normal hearing. On the August 1967 Report of Medical History, the Veteran answered "no" to whether he "ever had or have you now" ear trouble or hearing loss. Furthermore, the VA examination report and medical opinions do not link the Veteran's hearing loss to service. The October 2012 and September 2014 examiners opined that it is less likely as not that the Veteran's bilateral hearing loss is caused by or a result of military service. The examiner reasoned that the Veteran's enlistment and discharge audiograms indicated normal hearing with no significant threshold shift during military service. The Board finds these opinions to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The reference to a significant threshold shift during service or lack thereof indicates the opinion was not based solely on normal hearing at separation. Cf. Hensley, 5 Vet. App. at 155. Furthermore, the examiners are audiologists who possess the necessary education, training, and expertise to provide the requested opinion. In addition, the examiners considered the Veteran's history of noise exposure in service and provided adequate rationales for the opinions. The Board is sympathetic to the Veteran's assertions that his hearing loss should be service connected. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Service connection is also not warranted on a presumptive basis, as there is no evidence suggesting that the Veteran's current hearing loss manifested within one year of service separation. 38 C.F.R. § 3.307. Service connection is not warranted under 38 C.F.R. § 3.303(b), as there is no evidence showing that the Veteran's hearing loss manifested in service or a continuity of symptoms after service. On the question of continuity of symptomatology, the Veteran presented statements and testimony that he has experienced hearing impairment since an in-service incident involving cannon firing while serving in Vietnam. However, the Board observes that the Veteran's current statements made in connection with his pending claim for VA benefits, that his current hearing impairment has been continuous since service, are inconsistent with the Veteran's earlier statements. On his August 1967 service separation examination, not only did he remain silent as to any complaints of hearing loss problems, but he specifically denied "hearing loss" on the Report of Medical History by checking off the "no" box. While the Board has no reason to doubt the sincerity of the Veteran's current belief that his symptoms of hearing impairment have been present since the claimed injury in service, the evidence contains some inconsistencies that diminish the reliability of his current recollections. Based on the Veteran's conflicting statements, the Board finds that the Veteran is less than credible to the extent that he reports the onset of his hearing loss. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.); also see Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Consequently, the Board attaches little probative value to his lay content as to the onset of hearing loss in service. In light of the above discussion, the Board finds that the service connection claim for hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, the claim for entitlement to service connection for hearing loss is reopened, and to this extent only, the appeal is granted. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs