Citation Nr: 1754446 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-10 870A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from September 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The issue of entitlement to service connection for bilateral hearing loss was previously denied in a September 2009 rating decision issued by the same RO. In April 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. A September 2009 rating decision denied service connection for bilateral hearing loss. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision (that September 2009 rating decision) relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating that claim. 3. The competent medical evidence does not demonstrate that the Veteran has hearing loss that was incurred in service or is otherwise caused by or attributable to his service. CONCLUSION OF LAW 1. The September 2009 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). II. Reopening of Claim A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing 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). The Veteran's initial claim of entitlement to service connection for bilateral hearing loss was denied in a September 2009 rating decision. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance. Accordingly, that September 2009 rating decision is final, and new and material evidence is required to reopen this claim. See 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242 (2010). Evidence received more than one year since the September 2009 rating decision includes February, March and December 2014 letters from the Veteran's private physician, who we will refer to in this decision as Dr. S. L. The letters from Dr. S. L. indicate that he is of the opinion that the Veteran's hearing loss is due to working around jet aircraft engines. See Medical Treatment Record received January 30, 2015; Medical Treatment Record received March 12, 2014. This evidence is new, as it was not considered in the previously-mentioned prior final denial. It is also material, because it is not cumulative or duplicative of evidence previously considered, and it raises a reasonable possibility of substantiating the Veteran's claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the Board finds that the claim may properly be reopened and reconsidered. Proceeding to a determination of this claim on its merits will not prejudice the Veteran, as the claim was already considered on its merits in the June 2011 rating decision mentioned in the INTRODUCTION section of this decision above. III. Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Alternatively, service connection may be granted on a presumptive basis for certain chronic diseases as outlined in 38 C.F.R. § 3.309(a) if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran has been diagnosed with sensorineural hearing loss (SNHL) in his left ear, and that, as an organic disease of the nervous system, SNHL is considered a chronic disease pursuant to 38 C.F.R. § 3.309(a). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). With regards to a showing of chronic disease in service, it is necessary for the Veteran to demonstrate a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Where the disease identity is established, there is no requirement of evidentiary showing of continuity. However, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Under 38 C.F.R. § 3.385, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Board notes that the U.S. Court of Appeals for Veterans Claims has stated that the proper inquiry in hearing loss cases is "whether or not any current hearing disability can be related to in-service noise exposure, not whether hearing loss was demonstrated in service." See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Additionally, the Board notes that the absence of documented hearing loss or tinnitus while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran claims that he is entitled to service connection for bilateral hearing loss, which he claims he incurred during and as a result of his active duty military service. Specifically, he claims that he has bilateral hearing loss that was caused by his exposure to the loud noise of jet engines while he piloted and otherwise worked in close proximity to military jets. The Veteran has submitted several written statements from others, including from his siblings, coworkers, and presumably friends. Each indicates that the authors have noticed that the Veteran has difficulty hearing. The Veteran's siblings indicated that that difficulty was apparent since his discharge from the military. His coworkers and friends, however, generally do not seem to even have known the Veteran at all during his time in the military, and their statements simply indicate that they have noticed the Veteran's hearing difficulties at points in time well after his military service. At the outset, the Board notes that it finds that establishing the etiology, or cause, of one's hearing loss requires competent medical evidence, as reliably making such a finding requires specialized education, training, and/or experience. Review of the evidence of record reveals that neither the Veteran nor any of his siblings, friends or coworkers that submitted statements in support of his claim have shown that they have such qualifications. Thus, the Board must look elsewhere for direct evidence of the etiology of the Veteran's hearing loss, if any. The Board notes, however, that the Veteran is competent to report that he perceived that his hearing was worsening, and had been continuing to do since he was on active duty. Furthermore, his siblings are competent to testify that they remember the Veteran having difficulty hearing (e.g., asking them to repeat themselves, speaking more loudly than necessary, etc.) since his discharge from the military. Thus, the Board has considered the Veteran's and his siblings' testimony in those regards, despite the finding that they are not competent to testify directly as to the etiology of his hearing loss. The Veteran's service treatment records (STRs) do not show any findings of hearing loss during his active duty service, and his other, post-service medical records do not reflect any such findings within one year after his discharge from active duty service, either. The Veteran has been afforded two VA examinations by two separate audiologists, from February 2011 and November 2014, both of whom opined that the Veteran's hearing loss (which they only found to exist, for VA disability compensation purposes, in his right ear) was less likely than not related to his military service (including to his exposure to loud jet engines therein). Both of these examiners noted their review of the Veteran's claims file, and the second examiner provided the most thorough etiology opinion of record, which she supported by citation of medical literature providing that there is no scientific support for the theory of delayed onset hearing loss (in other words, noise exposure at one point in time causing hearing loss at a later point in time). The opinions provided by Dr. S. L. supporting the Veteran's claim of entitlement to service connection is brief (only a few sentences long) and provides little rationale as to why it was the physician's opinion that the Veteran's hearing loss was attributable to his in-service noise exposure as opposed to any post-service noise exposure, which was admitted to be another possible cause of the hearing loss. Furthermore, Dr. S. L. did not note what information he reviewed and took into consideration when forming his opinion, nor where he gathered any such information from. And more specifically, there is no indication that he reviewed the Veteran's service treatment records, medical records from other healthcare providers, or any other portion of his claims file. For these reasons, the Board finds that Dr. S. L.'s favorable etiology opinion is far outweighed by the more detailed, thorough, and better supported opinions of the VA examiners. The Board also finds that the Veteran's testimony that he has suffered from hearing loss since and due to his service is similarly outweighed by those VA opinions. The Veteran may very well have sensed that his hearing loss was diminished since his active duty service, but his testimony, and that of his siblings, is still not competent evidence that he had hearing loss, for VA ratings purposes, since then, or that his hearing loss, if any, was or is due to his in-service noise exposure. Furthermore, based on the level of education, training, and experience possessed by the two VA examiners, and the second VA examiner's citation to supporting medical literature, the Board finds the examiners' opinions to be far more probative and compelling on the issue of whether the Veteran's hearing loss was caused by his military service. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has hearing loss that was incurred in or caused by his military service. See 38 U.S.C.A. § 1110. The Board notes that there is also a question as to whether the Veteran actually has hearing loss in his right ear, for purposes of VA disability compensation. However, having found that the preponderance of the evidence weighs against a finding that he has hearing loss that is related to his military service, the Board finds it unnecessary to address whether he does or does not have the requisite level of hearing loss in his left ear. The Board also notes that, per the Veteran's requests in some of his written statements (e.g., from December 2010), it has considered the "VA Fast Letter dated September 2, 2010," (which can be found online at http://3e3wit1jv3691nltvx1r85n3.wpengine.netdna-cdn.com/wp-content/uploads/2015/02/Duty-MOS-Hearing-Loss-Probability-Chart-VA-Fast-Letter-10-35.pdf). See, e.g., VA Form 21-4138, Statement in Support of Claim, received December 13, 2010. However, that letter is of no assistance to the Veteran in his attempts to show a nexus between his current hearing loss and an in-service event, as it only relates to the existence of the in-service event, and not to the showing of the requisite nexus. See Holton, 557 F.3d 1362, 1366. Because the nexus element of service connection has not been sufficiently established, the Veteran is not entitled to service connection for bilateral hearing loss. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs