Citation Nr: 1800343 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-13 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1959 to January 1963. The matter comes before the Board of Veterans' Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board Hearing in October 2017. 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) (2012). FINDINGS OF FACT 1. The Veteran's claim for service connection for bilateral hearing loss was considered and previously denied by the RO in a September 2011 rating decision. The Veteran was notified of this decision and his appellate rights and did not file a Notice of Disagreement (NOD) or submit new and material evidence within one year of the rating decision. 2. The evidence of record since the September 2011 rating decision is not cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. 3. The Veteran's bilateral hearing loss was incurred in service. CONCLUSIONS OF LAW 1. The September 2011 rating decision that denied the Veteran's claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2017). 2. The evidence received since the September 2011 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. In a September 2011 rating decision, the RO determined that the Veteran's bilateral hearing loss was not due to any incident in his military service. The RO noted the Veteran was exposed to acoustic trauma while in service, but noted the Veteran's hearing was noted as normal at discharge. Furthermore, there was no identification of hearing loss for either ear during active duty. The Veteran was notified of that decision and his appeal rights; however, he did not file an appeal. In general, the rating decisions that are not timely appealed are final. See 38 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Thus, the September 2011 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). As a preliminary matter, after the September 2011 denial, service personnel records were obtained. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. Service records related to a claimed in-service event, injury, or disease are relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (2017). New and material evidence is not needed to reopen his previously denied claim and it will be reviewed on a de novo basis. However, in this case, the additional service personnel records are not relevant, as they do not pertain to noise exposure or hearing loss. Therefore, the Board finds that the provisions of 38 C.F.R. § 3.156(c)(1)(i) do not apply to the facts of this particular case because the additional service personnel records are not relevant to the claim. In April 2015, the Veteran filed an application to reopen the claim. The evidence received since the September 2011 rating decision includes the Veteran's more recent VA treatment records and lay statements from the Veteran. The lay statements and the VA medical records show the Veteran's hearing problems have continued since service. Presuming the credibility of the new evidence, it is new and material because it relates to the nexus element of the service connection claim. Thus, the Board concludes that new and material evidence has been received to reopen the Veteran's claim for bilateral hearing loss. 38 C.F.R. § 3.156(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2017). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On the authorized audiological evaluation in July 2011, pure tone thresholds, in decibels for the right ear, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 60 90 LEFT 25 25 40 65 90 The average pure tone threshold in the right ear was 56 decibels and for the left ear was 55 decibels. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 84 percent in the left ear. The result of this examination provides probative evidence that the Veteran's bilateral hearing loss meets the criteria to be considered a disability for VA purposes. See 38 C.F.R. § 3.385 (2017). To receive presumptive service connection for right ear hearing loss, the Veteran's disability either must be present in service or must appear to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2017). Here, there is evidence of continued symptomatology of hearing loss. The Veteran reported in his March 2016 lay statement and at his October 2017 Board hearing that he has suffered from hearing loss since he left service. The Veteran noted in both statements that when he returned from service and worked in his sales job, he had trouble hearing the customers and had to ask customers to repeat themselves. The Veteran also reported the difficulty he had in conversing with his family members because of his hearing problems. The Board notes that the Veteran's lay statements show that he has had persistent difficulty with hearing loss. The Veteran is competent and credible to report continued symptoms of his hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). While the October 2011 VA examiner found that the Veteran's hearing loss was not related to his military service, the examiner only considered that the Veteran's separation examination showed the Veteran's hearing was normal. However, the VA examiner noted the Veteran did not have an audiological examination at induction, only the whispered voice test. Thus, the VA examiner was unable to adequately compare the Veteran's hearing at induction and separation. Furthermore, the VA examiner failed to consider the Veteran's lay statements. Therefore, the October 2011 VA opinion is inadequate because the examiner did not fully consider the Veteran's lay statements. Consequently, the Veteran's statements meet the requirement for presumptive service connection. The Board finds the Veteran's lay statements about his continued hearing loss more probative that the October 2011 VA examiner's opinion. As previously noted, the Board finds the examiner's opinion inadequate. Here, the Veteran's lay statements showing continued symptomatology receive the benefit of the doubt and service connection for bilateral hearing loss is warranted. Thus, the preponderance of the probative evidence is for the Veteran's claim and service connection is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER New and material evidence having been submitted, the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs