Citation Nr: 1752523	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  11-29 924	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

1.  Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Alexander Panio, Counsel


INTRODUCTION

The Veteran, served on active duty in the United States Marine Corps from August 1950 to February 1952.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA).   

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017.  A transcript of those proceedings is of record.

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).

In September 2017, the Board requested an opinion from a medical specialist under the employ of the Veterans Health Administration (VHA).  The November 2017 VHA opinion has been associated with the record.


FINDINGS OF FACT

1.  Evidence received since final July 2005 rating decision is not duplicative or cumulative of evidence previously received, relates to a relevant unestablished fact and raises a reasonable possibility of substantiating the Veteran's service connection claim.

2.  The Veteran's bilateral hearing loss is resultant from in-service acoustic trauma. 


CONCLUSIONS OF LAW

1.  The Veteran has submitted new and material evidence sufficient to reopen his claim for service connection for bilateral hearing loss.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017).

2.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran's claim for a service connection for bilateral hearing loss was initially denied in a July 2005 rating decision.  The Veteran did not perfect an appeal to that decision and no additional evidence pertinent to the issue was physically or constructively received within one year of the decision.  Thus, the July 2005 rating decision became final based on the evidence then of record.  38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§  3.156(b), 20.1103; see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).

A previously denied claim can be reopened if the claimant submits new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  New and material evidence has been received more than one year since the July 2005 rating decision, including a medical opinion, sufficient to warrant reopening the Veteran's claim for service connection.  

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

The Veteran has been diagnosed with bilateral hearing loss.  See May 2010 VA examination report.  His military occupational specialty was in artillery at a point in time when hearing protection was not routinely in use.  Thus, acoustic trauma during service is conceded as consistent with the circumstances of his service.  38 U.S.C. § 1154(a).  The Veteran has stated that his hearing loss began between the ages of 20-25, contemporaneous with service.  While the May 2010 VA examiner opined that the Veteran's hearing loss was not the result of service, the November 2017 VHA otolaryngologist determined that the Veteran's hearing loss at least as likely as not had its onset during active duty or is causally related to his active duty.  Affording the Veteran the benefit of the doubt on the matter of nexus, service connection for bilateral hearing loss is established.  38 C.F.R. § 3.303.


ORDER

The petition to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is granted.

Service connection for bilateral hearing loss is granted.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs