Citation Nr: 1751449 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-08 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for entitlement service connection for hearing loss. 2. Entitlement to service connection for hearing loss. ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1954 to November 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that service connection for hearing loss has been previously denied in a final rating decision. Given that, new and material evidence is necessary to reopen that claim. 38 C.F.R. § 3.156 (a). Thus, the Board has styled the issue of service connection for hearing loss as a petition to reopen. Further, as the Board is reopening that claim, there is no prejudice to the Veteran in proceeding in that manner. 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. In a December 2001 rating decision, the RO denied reopening the claim for service connection for right ear hearing loss. 2. Evidence received since the December 2001 rating decision that denied service connection for right ear hearing loss is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. The evidence is in relative equipoise as to whether the Veteran's current hearing loss disability is related to in-service noise trauma. CONCLUSION OF LAW 1. The RO's December 2001 denial of the application to reopen the claim for service connection for right ear hearing loss is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the December 2001 rating decision, and the claim for service connection for hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). A finally disallowed claim may be reopened when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156 (2017). "New" evidence is evidence not previously submitted to agency decision makers. Evidence is "material" if it 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). By way of background, an August 1965 rating decision denied service connection for hearing loss. A December 2001 rating decision denied reopening service connection for hearing loss but recharacterized the disability for right ear hearing loss. The Veteran did not appeal this decision, and no new and material evidence was received within one year of this decision. As such, it became final. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since then, evidence has been received showing that the Veteran has a hearing loss disability consistent with 38 C.F.R. § 3.385. This evidence is new and material and raises the possibility of substantiating the claim, therefore it is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, including sensorineural hearing loss, as organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). III. Analysis The Veteran maintains that he has a current hearing loss disability that is the direct result of his active service. The Veteran specifically asserts he developed hearing loss as a result of in-service exposure to traumatic noise during the performance of his duties and that the condition has continued to worsen since service. The Board notes that the Veteran's complete service record is unavailable because it was destroyed in a fire as noted in correspondences received August 9, 2017. When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). In a sworn statement translated and received in October 25, 2017, the Veteran stated that he was involved in a "tank explosion". He further reported that he experienced an auditory pathology in the form of decreased hearing acuity following the incident. He also noted in that statement that he suffered from the injury from the time of the incident through separation and at present and has been treated for it on several occasions. He also explained that he filed a claim in 1965 for his hearing loss but was denied. Indeed, the record supports the Veteran's sworn statement. During his August 2017 medical examination, it was noted that the Veteran's medical history included sustaining acoustic trauma from a "tank exhaust blast effect." The record also includes a rating decision for hearing loss and other claims from 1965. With respect to an in-service event, on September 2, 2010, VA issued Fast Letter 10-35, Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. This letter introduced the Duty MOS (military occupational specialties) Noise Exposure Listing, a rating job aid for determinations regarding service connection for hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of MOSs and the corresponding probability of hazardous noise exposure. Based on a veteran's records, each MOS documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the MOS is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing an in-service event with respect to direct service connection. The Board notes that Fast Letter 10-35 was rescinded due to its incorporation into the VA Adjudication Procedures Manual (M21-1) and that substantively similar information is included in the M21-1. See M21-1, Part III, Subpart iv, Chapter 4, Section B, 4.e. The Veteran's DD 214 is of poor quality and difficult to read. However, the August 2017 examiner noted that the Veteran's VA Form 21-2507 and DD Form 214 show an "MOS of Armor Senior Sergeant (19Z) which was highly probable for hazardous noise exposure." Indeed, comparing this MOS to the Duty MOS Noise Exposure Listing, a MOS of Armor Senior Sergeant is listed as having a high probability of exposure to hazardous noise. As such, given the evidence of record, an in-service event, specifically exposure to hazardous noise, is conceded. An August 2017 VA audiological examination shows that the Veteran has a current bilateral hearing loss disability for VA purposes. The Veteran had puretone threshold levels 40 decibels or greater at 1000, 2000, 3000, and 4000 Hertz with a speech recognition score on the Maryland CNC test of 92 percent in the right ear and puretone threshold levels 40 decibels or greater at 2000, 3000, and 4000 Hertz with a speech recognition score on the Maryland CNC test of 96 percent in the left ear. See 38 C.F.R. § 3.385 (2017) (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, 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.); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board further notes that the Veteran's August 1956 separation examination is silent for complaints of hearing loss. Nevertheless, the Veteran has reported that he first experienced an auditory pathology, including decreased hearing acuity, during his active service and that his auditory symptoms have progressively worsened since that time. See Hensley, 5 Vet. App. at 159-160 (holding that, when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the 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). The Veteran is competent to report experiencing an in-service injury and resultant diminished hearing and additional auditory pathology in the form of hearing loss because hearing loss is a condition with unique and readily identifiable features that are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. Accordingly, the Board finds the Veteran's account of experiencing in-service noise trauma and auditory symptomatology to be credible and consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran to be credible in his report of having auditory symptomatology since service. Thus, there is competent and credible lay evidence of record that hearing loss occurred following acoustic trauma during active service and have continued to progress since that time. The August 2017 opinion did not provide an opinion as to etiology, but the Board acknowledges there is a negative etiological opinion of record in the form of the August 2016 VA audiological examination report. However, the Board declines to accept this opinion, as it failed to adequately address the Veteran's lay assertions of traumatic noise exposure and onset of auditory symptomatology, which the Board has found to be competent and credible. See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Importantly, in opining that the Veteran's hearing loss was not due to military noise exposure, the examiner based the negative opinion primarily upon the absence of documented hearing loss in the medical record while in active service. However, it was determined that some of the Veteran's records had been destroyed in a fire. Furthermore, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. 155. Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection.). As a result, the August 2016 VA medical opinion forms an inadequate foundation upon which to base a denial of entitlement to service connection for hearing loss. Rather, the Veteran has competently and credibly reported a continuity of symptomatology of auditory pathology in the form of decreased hearing acuity during and since active service. Charles v. Principi, 16 Vet. App. 370 (2002); Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). This report of a continuity of symptomatology suggests a link between his current hearing loss and active service. Duenas v. Principi, 18 Vet. App. 512 (2004). Accordingly, in absence of any probative evidence to the contrary, the Board finds that the evidence for and against the claims is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has been received, the claim for service connection for hearing loss is reopened. Entitlement to service connection for hearing loss is granted. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs