Citation Nr: 1752883 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-31 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss and, if so, whether the claim can be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The claim for service connection for bilateral hearing loss was first adjudicated in an April 2006 rating decision that was not appealed to the Board. The Board finds that the benefits claimed and denied in April 2006 and the current claim are the same as the Veteran has identified the same disability and cause of said disability in each claim. The Board, therefore, does not construe the current claim as a claim for a "distinctly diagnosed disease" from the claim adjudicated in April 2006. As such, his current claim is not a separate and distinct claim, but rather a claim to reopen his prior determination. See Velez v. Shinseki, 23 Vet. App. 199 (2009). The Veteran provided testimony during a hearing before the undersigned in August 2017. A transcript has been added to the 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. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. In April 2006, service connection for bilateral hearing loss was denied; the Veteran failed to perfect the appeal or file a VA Form 9 substantive appeal following a March 2007 statement of the case. 2. Evidence received more than one year after the April 2006 decision is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim. 3. Bilateral hearing loss, first manifested many years after service, did not have its clinical onset during or as a result of service. CONCLUSIONS OF LAW 1. The April 2006 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. §§ 7104(b), 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.201, 20.202, 20.302, 20.303, 20.1103 (2017). 2. Evidence received more than one year since the April 2006 rating decision is new and material and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist 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). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in May 2011, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records. The Veteran has not identified any outstanding and available medical treatment records. In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, a claim which has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). Service connection for bilateral hearing loss was initially denied in an April 2006 rating decision on the basis that the Veteran's hearing was within normal limits upon discharge and did not change significantly during service, and the evidence did not demonstrate that his current hearing loss was etiologically related to military service. The Veteran did not issue a VA Form 9 following a March 2007 statement of the case. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.202, 20.1103 (2017); cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c)). Since the 2006 decision, the Veteran testified that his treatment providers have told him that his hearing loss was "caused by acoustic trauma" and that he complained about his hearing during service. See Board Hearing Transcript (Tr.) at 6, 8. This evidence is new and material to the basis for the prior denial, namely whether the Veteran's current bilateral hearing loss is etiologically related to in-service acoustic trauma. Accordingly, the claim is reopened. Service Connection: Bilateral Hearing Loss The Veteran contends that he incurred bilateral hearing loss due to in-service noise exposure. The Board concludes that the evidence is against a finding of service connection in this case. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). The Board notes that his claimed noise exposure from weapons fire is consistent with the circumstances of his service, which included confirmed combat service. Therefore, his reports are competent and credible and the in-service noise exposure is conceded. 38 U.S.C. § 1154(a), (b) (2012). However, service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. His hearing was noted to be normal upon separation examination in June 1967 and the Veteran specifically denied hearing loss and ear trouble in a report of medical history at that time. From enlistment to separation, the Veteran's hearing acuity either improved or stayed the same according to the contemporaneous audiograms of record. While the Veteran was treated for wax build up in his ears as well as one instance of a left ear infection during service, there is no evidence he complained of his hearing at that time and, more importantly, no evidence of actual loss of hearing acuity during military service. The Board acknowledges the Veteran's reports that he does not remember receiving an examination of his hearing upon separation. However, the record demonstrates that an audiogram was in fact conducted, as results of the test are clearly included in the separation examination, and there is no evidence that these results were erroneous or fabricated. The Board further acknowledges the Veteran's reports that he noticed hearing loss during service. However, as noted above, the service treatment records are negative for such symptoms and, in fact, reveal that the Veteran's hearing was normal upon separation. The Board further acknowledges the Veteran's report during his hearing that he first sought audiology treatment within a "few" years of discharge. See Board Hearing Tr. at 5. However, he has not identified any treatment provider for that treatment or stated that he was diagnosed with qualifying hearing loss according to VA regulation. In addition, the first evidence of right ear hearing loss is in August 2003 and August 2005 audiograms, where mild right ear hearing loss was demonstrated. Left ear hearing was demonstrated to be within normal limits in August 2003, August 2005, and January 2006 and was not diagnosed according to VA regulation until an August 2010 VA audiogram. The Board concludes that it is clear that bilateral hearing was not demonstrated within one year of service and, therefore, presumptive service connection is not warranted under 38 C.F.R. §§ 3.307(a) and 3.309(a) (2017). In addition, the Board finds that the evidence weighs against a finding of a nexus between current hearing loss and service. Both January 2006 and June 2011 VA examiners found that as the Veteran's hearing was within normal limits and as there was not a significant shift in hearing acuity during service, the Veteran's current bilateral hearing loss is less likely as not related to military service, including the in-service noise exposure. The Board notes that during the January 2006 VA examination, the examiner further noted that the Veteran worked in a university police station post-service and was required to qualify with weapons training, albeit with hearing protection. The only evidence in favor of the claim is the lay evidence from the Veteran. However, he is not competent to render an etiology opinion. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise, which he has not been shown to possess. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although he is competent to report when lay-observable symptoms such as a loss in hearing acuity began, the fact that his hearing was found to be normal at separation, that he specifically denied hearing loss/ear problems upon separation, his reported symptoms were not noted for more than three decades post-service, and the fact that he had post-service noise exposure from working with and around weapons weighs significantly against his claim. The Veteran has not submitted competent medical evidence that his current bilateral hearing loss was incurred during or due to service. In fact, the only competent medical evidence of record is the opinion of the VA examiner, which is against the claim. While the Veteran testified that his treatment providers have told him that his hearing loss was "caused by acoustic trauma," he did not report that they specifically thought it was the in-service acoustic trauma. Moreover, the Veteran was asked to submit evidence of these opinions and the record was held open to provide time for him to do so. He has not submitted such evidence and the VA audiology treatment records which span more than 14 years are negative for such opinion. The Board finds that the Veteran's reports regarding what his treatment providers have opined are outweighed by the competent medical treatment and opinion evidence of record. Based on the foregoing, the Board finds that the evidence of record does not support a finding of service connection for bilateral hearing loss. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER New and material evidence having been received; the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is denied. ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs