Citation Nr: 1800672	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-29 052A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

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

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

 Veteran represented by:	The American Legion









ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran had active service from May 1963 to May 1965. 

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In the February 2014 rating decision, the RO reopened the claim of entitlement to service connection for bilateral hearing loss and denied it on a de novo basis.  Although the RO reopened this claim, the Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen the previously denied claim.  See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).  The Board has a responsibility to consider whether it was proper for a claim to be reopened; and there is no harm to a veteran's ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As a result, the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss has been listed on the first page of this decision.

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.  A December 2011 rating decision denied entitlement to service connection for bilateral hearing loss.  The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision.

2.  Some of the evidence received since December 2011, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss.

3.  The evidence is in equipoise as to whether bilateral hearing loss is related to in-service noise exposure.


CONCLUSIONS OF LAW

1.  The December 2011 rating decision, which denied the Veteran's claim of entitlement to service connection for bilateral hearing loss, is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017).

2.  The evidence received since the December 2011 rating decision is new and material, and the claim of entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  Having resolved reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred in active service.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Governing law and regulations

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence.  38 U.S.C. § 5108.  New evidence means existing evidence not previously submitted to VA.  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, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  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, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).

The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Evidence "raises a reasonable possibility of substantiating the claim" if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.307, 3.309.

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) 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.

Analysis

In the December 2011 rating decision, a RO denied the claim of entitlement to service connection for bilateral hearing loss based on the determination that the Veteran did not have a current disability.  

The Veteran did not submit a notice of disagreement with the December 2011 rating decision.  No new and material evidence was received by VA within one year of the issuance of the December 2011 rating decision.  As such, the December 2011 rating decision became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

Since the final December 2011 RO decision, the Veteran underwent a VA examination in February 2014, the report of which shows a diagnosis of bilateral hearing loss.  The Board finds this evidence would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss.  See Shade, 24 Vet. App. 110.

The Board has reopened the Veteran's claim.  Given that the RO had reopened the claim in the February 2014 rating decision, the Veteran is not prejudiced by the Board's consideration of this claim on the merits.  Bernard v. Brown, 4 Vet. App. 384 (1993).

The February 2014 VA examination report shows puretone threshold of 40 decibels or greater at 2000, 3000, and 4000 Hertz in both ears.  Thus, there is a current diagnosis of bilateral hearing loss disability for VA purposes. 

Therefore, the question is whether his current bilateral hearing loss is related to active military service or events therein.  See 38 C.F.R. § 3.303.

With respect to an in-service disease, the Veteran's service treatment records show no hearing loss disability for VA purposes in service.  There were no in-service complaints pertaining to difficulty hearing.  A November 1961 pre-induction examination report reflects that hearing using whisper-voice testing was 15/15 bilaterally.  A May 22, 1963, induction examination report reflects that the Veteran's hearing was not tested.  

Later on May 27, 1963, the Veteran underwent audiometric testing.  The report of that testing reveals puretone thresholds (converted from American Standards Association (ASA) to International Standards Organization-American National Standards Institute (ISO-ANSI) values) as follows:

	

HERTZ




500
1000
2000
3000
4000
RIGHT
10
0 
0 
0
-5
LEFT
15
5
5
0
-5

The March 1965 separation examination report reflects  puretone thresholds (converted from ASA to ISO-ANSI values) as follows:

	

HERTZ




500
1000
2000
3000
4000
RIGHT
15
10 
10 
N/A
5
LEFT
15
10
10
N/A
5

Simply put, the Veteran is not shown to have a hearing loss disability for VA purposes in either ear during service.  See 38 C.F.R. § 3.385.  

As to an in-service injury, the Veteran claims in-service noise exposure from being on the flight line.  His DD Form 214 shows that he served as an aircraft maintenance crewman.  The Board finds that the Veteran had in-service noise exposure.

There is conflicting medical evidence on whether the current bilateral hearing loss is related to in-service noise exposure.

The February 2014 VA examiner noted that there was not a permanent threshold shift (worse than the reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz in either ear during service.  The examiner opined that it is not at least as likely as not that the hearing loss in either ear (50 percent or greater probability) caused by or a result of an event in service.  The examiner's rationale was that the Veteran had normal bilateral hearing ability at the separation examination.  The examiner noted that the entrance examination hearing test was a whisper-voice test with no frequency-specific information and that therefore the test was not valid for rating purposes.  

As for the February 2014 examiner's determination that there was not a permanent threshold shift in any frequency in either ear during service, the Board notes that it does not appear that the examiner reviewed the May 1963 audiometric testing because the examiner only commented on the whisper-voice testing from the November 1961 pre-induction examination report.  The Board further observes that the examination report containing whisper-voice testing predated service by approximately a year and half and was not the entrance examination.  Therefore, the February 2014 VA examiner's opinion is of limited probative value.

In January 2016, the RO obtained a VA medical nexus opinion.  That January 2016 audiologist opined that it is less likely as not that the current bilateral hearing loss was caused by or aggravated by in-service noise exposure.  As to delayed onset of hearing loss, the audiologist stated current science from the Institute of Medicine indicates that the understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.  The audiologist indicated that the evidence from laboratory studies in humans and other animals is sufficient to conclude that the most pronounced effects of a given noise exposure on puretone thresholds are measurable immediately following the exposure.  Furthermore, the VA audiologist opined that the tinnitus is at least as likely as not related to in-service noise exposure.  The audiologist added that it is at least as likely as not that the tinnitus is a symptom associated with the hearing loss.

In December 2017 written argument, the representative cited Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss.  That study notes that post-exposure recovery of threshold sensitivity has been assumed to indicate no persistent or delayed consequences for auditory functioning.  "Adding Insult to Injury: Cochlear Nerve Degeneration After 'Temporary' Noise-Induced Hearing Loss", Kujawa & Liberman. J Neurosci. 2009 November 11; 29(45): 14077-85.  The study states that lack of delayed threshold shifts after noise has been taken as evidence that delayed effects of noise do not occur.  Id.   The study, however, finds that acoustic overexposures causing moderate, but completely reversible, threshold elevation have progressive consequences that are considerably more widespread than are revealed by conventional threshold testing.  Id.  The study notes that this primary neurodegeneration should add to difficulties hearing in noise environments and could contribute to tinnitus.  Id.  The study indicates that tinnitus is a classic residual of sound exposure that can occur with or without threshold elevation.  Id.  The study concludes that the present results show that reversibility of noise-induced threshold shifts masks progressive underlying neuropathology that likely has profound long-term consequences on auditory processing.  Id.

The United States Court of Appeals for Veterans Claims (the Court) has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)).  The Court has, however, also held that medical treatise evidence "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion."  Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks, 11 Vet. App. at 317).  The United States Court of Appeals for Federal Circuit (the Federal Circuit) held that "[a] veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his [or her] case."  Hensley v. West, 212 F.3d 1255, 1265 (2000).  

Although the VA examiners rendered negative medical nexus opinions, the medical evidence shows that there were permanent threshold shifts (worse than the reference thresholds) for 500, 1000, 2000, and 4000 Hertz bilaterally in service.  The medical evidence does not, however, indicate whether these permanent threshold shifts are greater than normal measurement variability.  The medical treatise evidence cited by the representative reflects that acoustic trauma may cause hearing loss in cases where the puretone thresholds were shown to have made a post-exposure recovery and that tinnitus can be associated with such cases.  Thus, there is conflicting medical treatise evidence on whether delayed onset of hearing loss from noise exposure is possible.  Similarly, the January 2016 VA audiologist stated that the tinnitus, which is now service connected, is a symptom associated with the bilateral hearing loss.  In light of the above, the evidence is in equipoise as to whether bilateral hearing loss is related to in-service noise exposure.  Thus, service connection is in order.  38 U.S.C.A. §§ 1110, 1131, 5107.







ORDER

New and material evidence has been received to reopen a claim of service connection for bilateral hearing loss.

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs