Citation Nr: 1751806 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-06 890A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for bilateral sensorineural hearing loss, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which continued a previous denial of service connection for bilateral sensorineural hearing loss. In August 2015, the case was remanded in order to schedule the Veteran with a hearing before the Board. The Veteran presented testimony at a January 2016 "Travel Board" hearing held at his local RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2017, the Veteran submitted a request that his appeal be accelerated on the Board's docket due to his age (72) and health conditions. In support of his request, the Veteran submitted a memorandum from his VA care provider at the Sacramento VA Medical Center, along with medical records indicating that the Veteran is an active patient with "severe systematic disease" limiting activity. The motion for advancement on the docket based on good cause shown due to severe illness, pursuant to 38 C.F.R. § 20.900(c) (2017), is therefore granted; the appeal is accordingly advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a May 2004 rating decision, the RO denied the Veteran's claim for entitlement to service for bilateral sensorineural hearing loss; the Veteran submitted a Notice of Disagreement and the RO issued a Statement of the Case in 2006; the Veteran did not submit a substantive appeal and new and material evidence was not received within the relevant appeal period. 2. In an August 2010 rating decision, the RO reopened the issue of entitlement to service connection for bilateral sensorineural hearing loss; the Veteran did not submit a Notice of Disagreement and new and material evidence was not received within the relevant appeal period following the continued denial of service connection. 3. Evidence associated with the claims file since the August 2010 decision is new, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for bilateral sensorineural hearing loss. 4. The evidence is at least evenly balanced as to whether the Veteran's bilateral sensorineural hearing loss is etiologically related to his excessive in-service noise exposure. CONCLUSIONS OF LAW 1. The May 2004 and August 2010 decisions denying service connection for bilateral sensorineural hearing loss are final. 38 U.S.C. § 7105(c) (2000, 2006, 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003, 2010, 2017). 2. As evidence pertinent to the claim of entitlement to service connection for bilateral sensorineural hearing loss received since the August 2010 decision is new and material, the criteria for reopening the claim are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. Affording the Veteran the benefit of the doubt, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by agency decision makers. 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran seeks to establish service connection for bilateral sensorineural hearing loss, which he asserts is causally related to his excessive noise exposure during military service. The RO reopened the claim and denied it on the merits in a June 2012 rating decision. The Board, however, has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO, and has done so, below. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). In the August 2010 rating decision, the RO continued the denial of the Veteran's claim for service connection for bilateral sensorineural hearing loss. Within the one-year period following this decision, the Veteran did not submit a Notice of Disagreement, and new and material evidence was not received. Therefore, the August 2010 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c) (2006, 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010, 2017). The basis of the RO's August 2010 denial was that the evidence did not show that the Veteran's bilateral hearing loss either occurred in or was caused by service. The RO further found no evidence that the hearing loss disability manifested to a compensable degree within one year of discharge from service. In support of his claim to reopen the issue of entitlement to service connection for bilateral sensorineural hearing loss, the Veteran submitted an examination report from a private ear, nose, and throat medical group ("private ENT") which contained an opinion that the Veteran suffers from hearing loss due to noise exposure in service without hearing protection. This evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim, specifically, whether the Veteran's hearing loss is related to his military service. As noted above, the credibility of the evidence is also presumed. Therefore it is found to be new and material, and reopening the claim for service connection for bilateral hearing loss is warranted. Turning to the underlying claim, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As an initial matter, audiometric testing performed at VA audiological examinations in August 2010 and April 2012 demonstrated decreased hearing acuity of each ear at a level qualifying as a "disability" for VA service connection purposes. See 38 C.F.R. § 3.385. The examiners diagnosed sensorineural hearing loss for each ear. The first criterion for service connection, the presence of a current disability, has therefore been met. The Veteran's DD Form 214 documents that he served with a military occupational specialty of field artillery, basic. At the Board hearing, he testified that he was exposed to excessive noise from duties as part of a 105 millimeter Howitzer battery. In a May 2010 statement, the Veteran specified that he had extensive combat and weapons training during which he experienced noise from M-14s, 30 caliber machine guns, cult 45s, M-60 machine guns, and M-79 grenade launchers at close range without hearing protection. He then served for 2 years in Germany working with a 105 self-propelled Howitzer artillery gun, where he was consistently within 3 feet or less from the blast, often experiencing extreme pain in his ears and loss of hearing that would persist for several days before returning. The Veteran is competent to report as to events and noise exposure during service and his statements regarding his experiences are found to be consistent with the circumstances of his service. The Board therefore finds that the weight of the evidence demonstrates that the Veteran was exposed to excessive noise and acoustic trauma during military service, thus fulfilling the in-service criterion for the service connection claim. The question remaining is whether the Veteran's bilateral hearing loss disability is etiologically related to his in-service noise exposure. The VA examination reports contain opinions that the Veteran's bilateral hearing loss is less likely than not related to service, both relying on entrance and separation audiological testing showing hearing within normal limits. The Board notes, however, that while the separation examination shows hearing within normal limits, the test results show at least one pure tone threshold which is borderline for each ear. Given that the May 1962 entrance examination only includes a notation that the Veteran tested 15/15 on a whisper test, it is difficult to tell whether there was a downward shift in hearing acuity during service based solely upon the STRs. The Veteran is competent to report his experiences in service, to include multiple instances where he felt ear pain and temporarily lost his hearing following experiences of acoustic trauma. Further, in his May 2010 statement, the Veteran described trouble understanding and hearing his professor's lectures and instructions in civilian computer classes shortly following his separation from service. He also reported a long history of asking people to repeat themselves. As noted above, the Veteran also submitted an August 2014 medical report from a private ENT which found that the Veteran suffered from asymmetrical bilateral sensorineural hearing loss due to his in-service noise exposure without hearing protection. The physician reasoned that the Veteran's post-military work was fairly quiet, and that the Veteran's demonstrated hearing loss and tinnitus were compatible with noise-exposure. Considering the aforementioned evidence, the Board finds that the evidence has at least reached the point of equipoise on the question of whether the Veteran's current hearing loss disability is at least partially caused by his exposure to excess noise during military service. There being at least an approximate balance of positive and negative evidence regarding this issue, the benefit of the doubt applies, and the third criterion for entitlement service connection has been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral sensorineural hearing loss is reopened. Service connection for bilateral sensorineural hearing loss is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs