Citation Nr: 1800512	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  13-11 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. A. Prinsen, Associate Counsel




INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from March 1970 to January 1974.

This matter is before the Board of Veterans' Appeal (Board) on appeal of an April 2011 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In April 2013, the Veteran requested a hearing before a Veterans Law Judge at his local VA office, but in November 2017, he withdrew his hearing request. 


FINDINGS OF FACT

1.  By a December 2010 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss; the Veteran was advised of the RO's decision and of his appellate rights.

2.  The Veteran did not initiate an appeal of the RO's decision.

3.  The Veteran submitted additional evidence in January 2011, after the expiration of the appellate period; the RO denied reopening the claim in April 2011.  

4.  In June 2014, the Veteran's service treatment records containing relevant evidence were received by the VA.

5.  The evidence of record does not establish that the Veteran's bilateral hearing loss occurred in or is attributable to active service 



CONCLUSIONS OF LAW

1.  The RO's December 2010 rating decision denying service connection for bilateral hearing loss is final.  38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 3.385, 20.200, 20.201, 20.302, 20.1103 (2017).

2.  The VA received relevant service treatment records in June 2014; therefore, the claim is reopened.  38 U.S.C. § 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156(c) (2017).  

3.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Assist and Notify

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017).

The duty to notify has been met.  See VCAA Letter January 2013.  Additionally, neither the Veteran, nor his representative, has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances. . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . . ." Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

The VA's duty to assist has been met.  The Veteran was provided a VA medical examination in October 2010.  The examination, along with the expert medical opinion, is sufficient evidence for deciding the claim.  The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. 
II.  Reopening for Entitlement to Service Connection for Bilateral Hearing Loss

In a December 2010 rating decision, the RO denied the Veteran's claim of service connection for bilateral hearing loss.  The Veteran did not appeal this decision, and it became final.  See 38 U.S.C. § 7104 (2012).  The Veteran also did not submit any statements relevant to this claim within one year of the December 2010 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156 (b).  See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)).

The Board generally does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  An exception to this general rule occurs when VA receives or associates with a claim file relevant official service department records and a previously denied service connection claim is then readjudicated on a de novo basis.  See 38 C.F.R. § 3.156 (c).  

In this case, VA received relevant official service department records consisting of the Veteran's service treatment records, containing audiological examinations.  Accordingly, the claim of entitlement to service connection for bilateral hearing loss is reopened.

III.  Service Connection 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show:  '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called "nexus" requirement."  Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran contends he is entitled to service connection for bilateral hearing loss due to noise exposure during active service.  The Veteran's military occupational specialty (MOS) was missile technician.   He reported being exposed to loud explosives during his time of service.  Based on the Veteran's reports and his MOS, the Board concedes that the Veteran was exposed to some degree of acoustic trauma while on active service. 

The medical evidence of record shows that the Veteran currently has bilateral hearing loss that is considered disabling for VA purposes; therefore, a current disability is shown.

However, the Board finds there is no evidence of an in-service event or injury.  Review of the Veteran's service treatment records is silent for any complaints, diagnoses, or treatment for hearing loss or hearing related problems.  In March 1970 the Veteran underwent audiometer testing, which revealed hearing within normal limits for VA purposes.  The Veteran's puretone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
5
10
0
5
5
LEFT
10
10
15
20
30

The Veteran underwent another audiometer testing for his separation examination in December 1973.  Again his results revealed that his hearing was normal for VA purposes.  His puretone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
5
5
0
LEFT
5
5
5
5
10

In October 2010, the Veteran attended an audiological VA examination.  His puretone thresholds, in decibels, and Maryland CNC results were as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
15
20
40
55
65
92
LEFT
35
30
45
65
80
88

The VA examiner noted the puretone testing indicated mild to severe sensorineural hearing loss that is worse in the left ear.  The VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's hearing loss is caused by or a result of his military noise exposure.  The VA examiner stated that the Veteran's hearing loss is consistent with his noise exposure history; however, his hearing was normal at the time of discharge from service and there is no medical evidence to support a delayed onset in hearing loss.

The Board finds that service connection for bilateral hearing loss is not warranted.  The medical evidence does not establish a relationship between the Veteran's current diagnosis and his active service.  The Board finds the opinion of the VA examiner persuasive.  As noted by the VA examiner in the rationale, the Veteran had normal hearing results after both the 1970 and 1973 audiometer testing conducted in service.  Additionally, the Board considered the Veteran's statements and finds him competent to report his hearing loss symptoms and exposure to noise in service.  However, the determination of whether the Veteran's current hearing loss is related to in-service noise exposure is a complex medical question that requires expertise.  Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316  (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case).  As such, the Board gives greater probative weight to the opinion of the VA examiner. 

Therefore, the Board finds the preponderance of the evidence is against the claim and entitlement to service connection for bilateral hearing loss.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).


ORDER

New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened.  

Entitlement to service connection for bilateral hearing loss is denied.  




____________________________________________
KRISTI L. GUNN  
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs