Citation Nr: 1752232 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-33 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a left ear hearing loss disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ear hearing loss disability. 3. Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2017 Board video conference hearing. A transcript of this hearing has been associated with the claims file. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. The issue of entitlement to service connection for a right ear hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a current left ear hearing loss disability for VA compensation purposes that is related to his military service. 2. In an unappealed January 2013 rating decision, the RO denied service connection for a right ear hearing loss disability, originally claimed as bilateral hearing loss disability. 3. The July 2017 private audiological testing report was not received prior to, nor is it cumulative or redundant of the evidence of record at the time of, the January 2013 rating decision. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 2. The January 2013 rating decision denying service connection for a right ear hearing loss disability, originally claimed as bilateral hearing loss disability, is final. 38 U.S.C. § 7104 (West 2012); 38 C.F.R. § 20.1103 (2017). 3. The evidence received for service connection subsequent to the January 2013 rating decision is new and material to reopen service connection for a right ear hearing loss disability, originally claimed as bilateral hearing loss disability. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as to the claims of entitlement to service connection for a left ear hearing loss disability and reopening for entitlement to service connection for a right ear hearing loss disability, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Hearing Loss Service Connection Law and Analysis The Veteran maintains that his left and right ear hearing loss disabilities were incurred due to exposure to acoustic trauma while on active duty. In a January 2013 rating decision, the RO denied the Veteran's claim for bilateral hearing loss, with the RO stating that, as for the right ear, there is no evidence the Veteran had a hearing loss for VA purposes, noting that service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz 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 (2017). For the left ear, the RO stated that there was no connection to the Veteran's service as he showed normal hearing upon separation. In February 2013, VA received a Notice of Disagreement (NOD) from the Veteran, stating that he desired to "appeal that portion of your decision as to whether the hearing loss in my left ear is connected to my time in the US Army." As such, this portion of the opinion will only deal with service connection for the Veteran's left ear hearing loss disability. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See, Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); see, Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). With respect to the first Hickson element, there is no dispute that the Veteran has a left ear hearing disability for VA purposes. As such, the Veteran has satisfied the first Hickson element. The Board notes that the February 1967 entrance examination shows no defects listed. A November 1968 separation examination notes the following audiometric testing results: HERTZ 1000 2000 3000 4000 RIGHT 10 15 15 LEFT 20 20 20 Partial deafness of the left ear was noted. VA received a statement from the Veteran in October 2010 in which the Veteran reported that while in basic training he was exposed to noise associated with weapons fire (rifle, grenade, and "other weapon ranges"). The Veteran further reported that after basic training he underwent advanced infantry training at Fort Polk where he underwent trained as a mortar man. The Veteran stated that due to this being the Vietnam era, "[t]raining was intense and involved all types of combat training including" M-16 rifles, hand grenades, grenade launchers, machine guns, crawling exercises with live fire and explosions, and artillery demonstrations. The Board notes that the Veteran's DD form 214 indicates he qualified with both M-14 and M-16 rifles. The Veteran then reported that when he took his separation physical, his hearing test showed what was described as "substantial" hearing loss in his left ear. The Veteran stated that after the military he worked in computer and cellular phone sales, as well as a college professor, and was not exposed to any high levels of noise. With respect to the second Hickson element, the Veteran has related his exposure to acoustic trauma while in service from weapons fire and training. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2) (2017). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran has alleged an in-service exposure to acoustic trauma. Additionally, the Veteran's DD Form 214 verifies the Veteran was at least exposed to weapons fire from M-14 and M-16 rifles. Here, the Board finds that the second Hickson element has been satisfied. The Board now turns to the third Hickson element. The Board has the authority to discount the weight of evidence in the light of its own inherent characteristics and its relationship to other items of evidence. See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may not reject a medical opinion based on the Board's own medical judgment. See, Colvin v. Derwinski, 1 Vet. App. 171 (1991). An October 2010 private audiological report from Professional Hearing Health Care revealed the Veteran's puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 15 25 30 35 LEFT 25 25 40 45 No nexus opinion was proffered and, as such, this report has no probative value. The Veteran was afforded a VA audiological examination in December 2012. Audiological testing revealed the Veteran's puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 10 20 30 30 LEFT 25 20 35 40 Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 100 percent in the right ear. Normal hearing was noted for the right ear and sensorineural hearing loss was noted for the left ear. The examiner opined that it was less likely than not that the Veteran's hearing loss was caused by his service, noting that the Veteran "had normal hearing sensitivity in both ears" in his November 1968 separation physical. This opinion does not take into account the Veteran's lay statements regarding his exposure to acoustic trauma while in service. Additionally, no mention is made of the notation on the Veteran's November 1968 separation physical that the Veteran was partially deaf in his left ear. As such, this opinion is of no probative value. The Veteran testified at the June 2017 Board hearing that he went through basic training as well as mortar training and was exposed to weapons fire throughout, to include grenade launchers, machine guns, explosions, and artillery. The Veteran stated that after the service he worked as a salesman, worked for Merrill Lynch, taught at a university, and ran a professional golf tournament and had no noise issues. Private audiological testing from Spokane Ear, Nose, and Throat from July 2017 revealed the Veteran's puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 20 30 30 35 LEFT 35 40 45 45 Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 100 percent in the right ear. The reliability of the examination was noted as good. The examiner commented that the Veteran was exposed to the M-16 rifle and .45 ACP handguns while in training. It was further noted that since the military the Veteran has not been exposed to weapons fire and that he "has no recreational activities that include noise exposure." The Veteran was diagnosed with moderate sensorineural hearing loss in his left ear and mild sensorineural hearing loss in his right ear. The examiner noted that they reviewed the Veteran's records, including his audiograms from the military, and opined that his hearing loss is more likely than not related to noise exposure while in the military. This opinion, though brief, is supported by a rationale which discusses both the Veteran's in service and post service exposure to noise, and as such is probative. Competent evidence of a current left ear hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. See, Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As discussed above, the July 2017 private audiological examiner discussed the Veteran's history of noise exposure and provided an opinion that his hearing loss was caused by his exposure to noise form weapons fire while in service. Additionally, it cannot be refuted that the November 1968 separation physical contains a notation of partial deafness in the left ear. The Veteran has consistently stated that while in training he was exposed to noise from weapons fire and explosions. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current left ear hearing loss disability is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). New and Material Evidence Law and Analysis As discussed above, the RO denied the Veteran's claim for bilateral hearing loss in a January 2013 rating decision. In February 2013, VA received a Notice of Disagreement (NOD) from the Veteran, stating that he desired to "appeal that portion of your decision as to whether the hearing loss in my left ear is connected to my time in the US Army." As such, following the January 2013 RO denial, the Veteran did not initiate any appeal of the decision as it regards the right ear hearing loss disability. The Veteran filed his current application to reopen his service connection claim for a right hearing loss disability in June 2014. In a March 2015 rating decision, the RO declined to reopen the Veteran's claim for a right ear hearing loss disability. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to 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). As discussed above, the Veteran submitted private audiological testing from Spokane Ear, Nose, and Throat from July 2017 in which the Veteran was diagnosed with mild sensorineural hearing loss in his right ear. The examiner opined that his hearing loss is more likely than not related to noise exposure while in the military. The Board finds that the July 2017 private audiological testing containing a nexus opinion linking a right ear hearing loss disability to the Veteran's military service was not previously submitted to VA before the January 2013 rating decision, and is therefore "new" evidence. The Board will now turn to a discussion of whether this new evidence is "material." The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The new evidence received subsequent to the January 2013 rating decision includes a nexus opinion linking a right ear hearing loss disability to the Veteran's military service. The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for a right ear hearing loss disability. This new evidence addresses a requirement of service connection that was previously denied; a nexus between the Veteran's hearing loss and his service. Therefore, this new evidence is material and the Veteran's claim for a right ear hearing loss disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). ORDER Entitlement to service connection for a left ear hearing loss disability is granted. New and material evidence having been received, the claim of entitlement to service connection for a right ear hearing loss disability is reopened. REMAND The Veteran maintains that he is entitled to service connection for a right ear hearing loss disability which he asserts was caused by his exposure to noise while on active duty. As discussed above, the Veteran submitted private audiological testing from July 2017 in which mild sensorineural right ear hearing loss was diagnosed. The Board notes that this testing did not show right ear hearing loss for VA compensation purposes, but the examination also did not state whether the speech recognition portion of the testing used the Maryland CNC Test, as required by 38 C.F.R. § 3.385. As such, the Board finds that the Veteran should be accorded a new VA examination to determine whether the Veteran has a current right ear hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records that are pertinent to the Veteran's claimed right ear hearing loss disability. 2. Schedule the Veteran for a VA audiological examination with an appropriate medical provider to determine the nature and etiology of the Veteran's claimed right ear hearing loss disability. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his hearing loss and noise exposure in service, to include the extent to which the Veteran was provided and used hearing protection during service. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA should answer the following: a. Does the Veteran have a current right ear hearing loss disability for VA purposes? b. If so, the VA examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current right ear hearing loss disability had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must address the Veteran's lay statements concerning his in-service noise exposure. The examiner must address the nexus opinion contained in the July 2017 private audiological examination. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs