Citation Nr: 1753740 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-05 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection is warranted. REPRESENTATION The Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1978 to June 1983. He has also served in the United States Army National Guard, with periods of active duty from October 2001 to October 2002, April 2006 to December 2006, and February 2007 to September 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the United States Department of Veteran Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO in Oakland, California is currently the Agency of Original Jurisdiction (AOJ). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a Travel Board hearing in August 2017. A transcript of the hearing has been associated with the electronic claims file. At the August 2017 Board hearing, the Veteran waived initial AOJ consideration of pertinent evidence received since the December 2013 Statement of the Case. At the hearing, he also waived initial AOJ consideration of a forthcoming September 2017 nexus opinion, which has been received. Since that time, additional evidence has been uploaded to the Veteran's electronic claims file. This evidence is either irrelevant to the claim on appeal, or duplicative of evidence for which the Veteran has previously waived initial AOJ consideration. Furthermore, as the decision below reopens the Veteran's claim and fully grants the benefits requested, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. FINDINGS OF FACT 1. In January 1993, the RO issued a rating decision denying entitlement to service connection for bilateral hearing loss. This rating decision was never appealed, nor was new and material evidence received within one year. This rating decision is final. 2. In February 2009, the Veteran filed a claim to reopen entitlement to service connection for bilateral hearing loss and has since filed new and material evidence. 3. At minimum, the evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss is etiologically related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The unappealed January 1993 rating decision, which denied entitlement to service connection for bilateral hearing loss, is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.156, 3.160, 20.302, 20.1100, 20.1103, 20.1104 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of service connection for bilateral hearing loss has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his Board hearing before the undersigned as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Additionally, the regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385) have previously been provided to the Veteran in the December 2013 Statement of the Case and will not be discussed in depth. The regulatory requirements for reopening a final previously denied claim will be discussed further below, where appropriate. With these procedural considerations addressed, the Board now turns to analyzing and adjudicating the claims. I. New and Material Evidence The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for bilateral hearing loss. After reviewing the evidence of record, the Board finds that new and material evidence has been submitted. This claim was previously denied in a January 1993 rating decision. No notice of disagreement was filed, and no new and material evidence was received within one year following the notification of that decision. Accordingly, the January 1993 rating decision became final. In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means 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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, a veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). In the January 1993 rating decision, the claim was denied due to a lack of current disability. Since that rating decision, new audiograms showing hearing loss for VA purposes have been received. Additionally, the Veteran provided new testimony relevant to his claim at the August 2017 Board hearing. This evidence is new, as it was not previously considered in the prior final rating decision, and is material as is raises questions regarding the unestablished fact of whether the Veteran experiences a current bilateral hearing loss disability eligible for entitlement to service connection. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-18. Accordingly, this claim is reopened. The RO implicitly reopened the claim and considered the merits in the December 2013 Statement of the Case, so the Board may do so as well. II. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131(2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the present matter, the Veteran has proven he has experienced a current bilateral hearing loss disability within the appeals period. Audiometric testing conducted in September 2008 showed normal hearing sensitivity from 250 to 2000 Hertz bilaterally, however moderate sensorineural hearing loss was documented at 3000 and 4000 Hertz bilaterally, with auditory thresholds in the range of 45 to 55 decibels. This qualifies as a bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385 (2017) ("impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater...."). Additionally audiometric testing conducted in August 2017 showed 55 decibel hearing loss at frequency 3000 Hertz and 65 decibel hearing loss at frequency 4000 Hertz in the left ear; 50 decibel hearing loss at frequency 3000 Hertz and 60 decibel hearing loss at frequency 4000 Hertz in the right ear. The Veteran has established the presence of a current disability. Shedden, 381 F.3d at 1167. Regarding the existence of a disease or injury in service, the Veteran's service treatment records show all in-service audiometric testing to be completely within normal limits, with the highest decibel loss shown on separation exam between 500 and 4000 Hertz being 0 on the right and 10 on the left. Nonetheless, the Veteran's DD-214s list the Veteran's military occupational specialty as "rifleman" and "marksmanship instructor" during his Marine Corps service and "infantryman" for all periods of active duty during his Army National Guard Service. VA recognizes that these military occupational specialties have a high probability of noise exposure. At the August 2017 Board hearing, the Veteran testified that his military service comprised of "fir[ing] a lot of weapons and a lot of infantry work." 8/16/17 Board hearing, p. 54. While the Veteran used foam earplugs to protect his ears, he testified more significant hearing protection was denied by his superiors. Id. at p. 5. Given this history, the Board concedes the Veteran was exposed to acoustic trauma during his military service. Thus, the Veteran has proven the in-service injury element of a service connection claim. Shedden, 381 F.3d at 1167. The remaining element is a causal nexus between his current bilateral hearing loss and the in-service acoustic trauma. Id. The nexus evidence of record consists of a favorable opinion by a VA audiologist issued in August 2017. The audiologist's treatment note contains a credible history of the Veteran's complaints, which matches the Veteran's Board hearing testimony: Veteran reports first enlisting in the Marine Corps in 1978 where he served as a sniper and ammo expert and states that he was firing weapons of every kind on the firing range daily, with only usage of ear plugs. He recalls experiencing tinnitus during this time due to the firing of various firearms. He was discharged in 1983. He worked in retail sales and then joined the Army National Guard in 1999 and served as a sniper from 1999 to 2008 and ammo expert and again cites noise exposure from the fire of various fire arms and cites usage of ear plugs only for sound suppression. He again experienced tinnitus during this time period. Because of noted high frequency hearing loss, in 2008, his MOS [military occupational specialty] changed and he became a cook. The audiologist performed an otoscopy and tympanometry examination in both ears. Audiogram testing showed borderline normal hearing sensitivity between 250 to 2000 Hertz, then dropping to a bilateral moderately severe sensorineural hearing loss, bilaterally. In light of the Veteran's noise exposure history and examination findings, the audiologist opined, "it is at least as likely as not that the Veteran's hearing loss is due to military noise exposure." Thus, the audiologist found the evidence in relative equipoise on the issue of whether the Veteran's hearing loss was related to his active duty military service. The Board concludes that the audiologist's nexus opinion is both competent and credible in this adjudication and is worthy of significant evidentiary weight. Given the above, the Board finds that the Veteran has satisfied all of the requisite elements for entitlement to service connection for bilateral hearing loss. Shedden, 381 F.3d at 1167. The evidence, at minimum, is in relative equipoise. ORDER As new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, the claim is reopened. Service connection for bilateral hearing loss is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs