Citation Nr: 1751734 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 17-06 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard and/or Army Reserves from August 1956 to August 1962, with various periods of active duty for training (ACDUTRA) during this time period. See National Guard Bureau Retirement Credits Record. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. A February 2014 RO administrative decision denied entitlement to compensation benefits. A Statement of the Case (SOC) was issued in December 2015, but the Veteran did not file a substantive appeal. 2. New and material evidence has been associated with the Veteran's claims file after the December 2015 SOC. 3. A bilateral hearing loss disability is related to the Veteran's active service. CONCLUSIONS OF LAW 1. The February 2014 RO administrative decision is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. The claim for entitlement to service connection for a bilateral hearing loss disability is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156(a) (2017). 3. A bilateral hearing loss disability was incurred in active service. 38 U.S.C. § 1131 (2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bilateral Hearing Loss Disability - New and Material The Veteran field a claim in November 2012 for entitlement to service connection for a bilateral hearing loss disability and a February 2014 RO administrative decision denied entitlement to compensation benefits (based on lack of qualifying active service), which inherently denied the Veteran's claim for entitlement to service connection for a bilateral hearing loss disability. The Veteran submitted a Notice of Disagreement (NOD) and a SOC was issued in December 2015. The SOC denied the Veteran's claim based on a lack of a current bilateral hearing loss disability for VA purposes. Following the December 2015 SOC, the Veteran did not timely file a substantive appeal (generally required within 60 days of the SOC) or submit new and material evidence prior to the expiration of the appeal period and therefore the February 2014 RO administrative decision is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). As will be outlined further below, the Board finds that evidence of record indicated a current bilateral hearing loss disability for VA purposes, a finding based on both evidence of record at the time of the December 2015 SOC and based on new and material evidence received since that decision (specifically an August 2016 private medical record). As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for a bilateral hearing loss disability is reopened and in this regard, the Veteran's claim is granted. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156(a) (2017). II. Bilateral Hearing Loss Disability - Merits Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. As to the issue of a current disability, as referenced above, the Board finds that evidence of record indicated a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385 (2017) defines "[f]or the purposes of applying the laws administered by VA" when "impaired hearing will be considered to be a disability." The provided definition of a hearing loss disability is met based on either certain audiometric test results or based on speech recognition scores using the Maryland CNC Test. Of record is an August 2014 VA audiology consult note, signed by an audiologist, that was accompanied by audiometric test results that met the provided definition in 38 C.F.R. § 3.385 (2017) for a bilateral hearing loss disability. The Board acknowledges that this testing predated the current claim on appeal, which was filed in March 2016. The United States Court of Appeals for Veterans Claims (Court), however, has stated that "when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed." See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The August 2014 VA audiology consult note is a recent diagnosis of a bilateral hearing loss disability for VA purposes and the evidence does not indicate that the Veteran's hearing acuity has improved following this testing. As such, the Board finds that the August 2014 VA audiology consult note is evidence that the Veteran has a current bilateral hearing loss disability for VA purposes. In addition, also of record is an August 2016 private medical record that contained audiometric test results, presented in graph format, that also met the provided definition in 38 C.F.R. § 3.385 (2017) for a bilateral hearing loss disability. See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Court may not interpret graph audiometric results, but not holding that the Board may not do so). Overall, the Board finds that evidence of record indicated a current bilateral hearing loss disability for VA purposes. The Board notes that the AOJ previously denied the Veteran's claim based on lack of a current bilateral hearing loss disability for VA purposes. In this regard, the AOJ discussed 38 C.F.R. § 4.85(a) (2017), which provides that "[a]n examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test." The record reflects that the various audiometric test results of record did not met this requirement, in that the August 2014 VA audiology consult note included non-Maryland CNC speech discrimination testing, October 2015, December 2015 and June 2016 VA audiological examination reports did not include audiometric test results or Maryland CNC speech discrimination testing and the August 2016 private audiometric test results did not contain Maryland CNC speech discrimination testing. Nevertheless, 38 C.F.R. § 3.385 (2017) is the relevant provision that determines when "impaired hearing will be considered to be a disability" for VA purposes and the requirements outlined in 38 C.F.R. § 4.85 (2017) are not applicable to this threshold determination of whether a hearing loss disability for VA purposes exists. Importantly, 38 C.F.R. § 3.385 (2017) is located in 38 C.F.R. Part 3, which is titled "adjudication," whereas 38 C.F.R. § 4.85 (2017) is located in 38 C.F.R. Part 4, which is titled "schedule for rating disabilities," and is titled "[e]valuation of hearing impairment." Overall, 38 C.F.R. § 3.385 (2017) applies to the issue of entitlement to service connection for a hearing loss disability, specifically the determination of whether a hearing loss disability for VA purposes exists, and 38 C.F.R. § 4.85 (2017) applies to the assignment of a disability rating for a service-connected hearing loss disability. In this regard, the Court discussed the interaction between 38 C.F.R. § 3.385 and 38 C.F.R. § 4.85 in Meedel v. Shinseki, 23 Vet. App. 277 (2009) and stated that "it [is] clear that [VA] interprets § 3.385 to be different from § 4.85 in purpose and procedure" and that "[a]s to purpose, § 3.385 is utilized first to determine whether hearing loss is of the level to be recognized as a disability, while § 4.85 is used to rate hearing loss once it has been characterized as a disability." See also McKinney v. McDonald, 28 Vet. App. 15 (2016) (applying 38 C.F.R. § 3.385 without mention of 38 C.F.R. § 4.85 when determining whether an entrance medical examination indicated a hearing loss disability for VA purposes (in the context of the presumption of soundness)). As applied to this case, the Board accordingly finds that the August 2014 VA audiology consult note and August 2016 private audiometric test results provided evidence of a current hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385 (2017), irrespective of whether such testing met the requirements of 38 C.F.R. § 4.85(a) (2017). As the Board has found that the evidence indicated a current bilateral hearing loss disability, the next issue is whether there was an in-service event. In a December 2015 rating decision, the AOJ stated that "[t]he evidence shows you served in the Army National Guard as an Infantryman. This MOS [military occupational specialty] is noted as highly probable for hazardous noise exposure...Your acoustic trauma is considered injury to the ears." As such, the AOJ found that the Veteran was exposed to acoustic trauma during his active service and therefore the requirement of an in-service event is met in this case. The remaining issue is whether a nexus exists between the Veteran's current bilateral hearing loss disability and his in-service acoustic trauma. Of record are two positive VA opinions, provided in October 2015 and December 2015, from separate medical professionals. These opinions were substantively similar and following a discussion of the Veteran's service treatment records (STRs), linked the Veteran's bilateral hearing loss disability to his service. The Board notes that the two medical professionals provided substantively similar opinions in regard to the etiology of tinnitus and that the AOJ granted entitlement to service connection for tinnitus in the December 2015 rating decision with reliance on these opinions as to the issue of nexus. There is no competent opinion to the contrary of the two positive VA opinions and the Board therefore finds that these opinions provide the required nexus between the Veteran's current bilateral hearing loss disability and his in-service acoustic trauma. This finding means that all three elements of direct service connection have been demonstrated by the evidence of record and accordingly entitlement to service connection is warranted. In sum, the Board finds that a bilateral hearing loss disability is related to the Veteran's active service. As such, the Board concludes that a bilateral hearing loss disability was incurred in active service and the Veteran's claim is therefore granted. 38 U.S.C. § 1131 (2014); 38 C.F.R. § 3.303 (2017). ORDER The application to reopen a claim for entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs