Citation Nr: 1801034 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-20 420A ) 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 a claim for 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 WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from April 1956 to December 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which found that no new and material evidence had been received to reopen a claim for service connection for bilateral hearing loss. The Veteran testified before the undersigned Veterans Law Judge at an October 2017 Travel Board hearing. A transcript of this hearing is of record. Following the April 2014 statement of the case, the Veteran submitted additional evidence in support of his appeal. The Veteran filed his substantive appeal in June 2014. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board, because the Veteran did not request in writing that the AOJ initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2012). 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. In a final April 2006 Board decision, the Board denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. 2. The evidence received since the April 2006 Board decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. 3. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed bilateral sensorineural hearing loss is etiologically related to his in-service military noise exposure. CONCLUSIONS OF LAW 1. The April 2006 Board decision that denied the Veteran's claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the Board's favorable decision in reopening a claim for service connection for bilateral hearing loss and granting service connection for bilateral hearing loss, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c) (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2017). Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 2006, the Board denied service connection for bilateral hearing loss. That decision is final. In the April 2006 Board decision, the Board denied the Veteran's claim for service connection for bilateral hearing loss, because the Veteran did not present evidence that he had a diagnosis for hearing loss that would constitute as a disability under 38 C.F.R. § 3.385. Since the Veteran's last prior final denial in April 2006, the record includes September 2009 and July 2010 VA audiological assessments reflecting diagnoses for bilateral sensorineural hearing loss that comply with VA regulations to establish a disability. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The VA audiological assessments will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service Connection The Veteran contends that his bilateral hearing loss developed during service and continued to the present. He specifically asserts that while training as an Aviation Cadet, during pre-flight training in June 1956, he sustained an injury to his left ear when his partner wrapped him up around his ear and threw him to the ground during a training exercise. During a sick call visit to treat severe ear pain, he said he was told he had a perforated ear drum, an infected ear, and a bruised ear canal. He said that his eardrum was vacuumed and that he received Aspirin. Since that injury, the Veteran contends that he had worsening hearing in the left ear. See September 2002 VA Form 21-526, November 2002 VA Form 21-4142, August 2010 statement, and April 2017 Board hearing transcript. After 12 weeks of pre-flight training was completed, the Veteran was assigned to flight training. While on leave, he experienced severe ear pain, sought private treatment with an ear, nose, and throat physician, and received medicine that resolved the pain. When he returned to flight training, the Veteran said he was grounded, because his perforated ear drum had not healed. He was reassigned to a communication squadron, where he mostly performed guard duty. He denied firing his weapon, but did indicate exposure to tremendous noise from B-50 planes when they started up without using any hearing protection. Although his military occupational specialty (MOS) was an administrative clerk, the Veteran said he never performed any clerical duties. After his perforated eardrum healed, the Veteran testified that he did fly several times; but, since he had lost a significant amount of time from training, he was unable to meet expectations, and he was discharged. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted and § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159-60. Notwithstanding the provisions relating to presumptive service , a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Based on a careful review of all of the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, his currently diagnosed bilateral sensorineural hearing loss is etiologically related to his in-service noise exposure. The evidence clearly demonstrates that the Veteran has a current diagnosis for bilateral hearing loss that comports with VA's definition under 38 C.F.R. § 3.385. See September 2009 VA audiological assessment. The record does not include any military personnel records, other than the Veteran's DD Form 214, or any service treatment records, because they have been determined to be unavailable for review. See March 2003 VA memorandum and March 2014 VA memorandum. According to the Veteran's DD Form 214, his MOS was administrative clerk, which does not indicate a high probability of noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). Nevertheless, the Board finds that the Veteran's statements regarding his exposure to tremendous noise from B-50 planes without hearing protection appear credible, as the record does not show any evidence to the contrary. Indeed, the Veteran also testified to participating in flight training after his perforated ear drum had healed. Furthermore, according to an August 2014 private treatment record, a private otolaryngologist concluded that the Veteran had classic noise induced hearing loss, which was much worse in higher frequencies. No post-service noise exposure was reported. Overall, the evidence tends to support that the Veteran was exposed to noise during his active duty service. The question remains whether the Veteran's currently diagnosed bilateral hearing loss is etiologically related to his military service. In that regard, the Board finds that the most probative evidence as to the etiology of the Veteran's bilateral hearing loss is an October 2017 private opinion. Following an interview and physical examination of the Veteran, a private otolaryngologist, Dr. P.R., found that the Veteran had severe sensorineural hearing loss bilaterally and mixed hearing loss on the left. Dr. P.R. noted that the Veteran had a history of left ear drum perforation and had been exposed to noise during service from prop planes, jets and large cargo planes and from loud equipment while he was assigned to communications. Finding that the Veteran had high frequency hearing loss, which is commonly caused by severe trauma, Dr. P.R. opined that the Veteran's bilateral hearing loss was most likely caused by or a result of service related noise trauma. The October 2017 private opinion is based on a thorough examination, a review of the Veteran's medical history, and consideration of lay statements, and is supported by a complete rationale. Notably, the record does not include any contrary medical opinions. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran's current bilateral hearing loss is etiologically related to his in-service noise exposure. Therefore, the Veteran's service connection claim for bilateral hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received, and the claim for entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs