Citation Nr: 1801234 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-46 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss; and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Karen M. Vessell, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service from October 1961 to August 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. An unappealed June 2008 rating decision denied service connection for a bilateral hearing loss disability. 2. The evidence associated with the record subsequent to the June 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of course, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. Bilateral hearing loss is etiologically related to acoustic trauma the Veteran sustained in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran originally filed a claim of entitlement to service connection for bilateral hearing loss in January 2008. A June 2008 rating decision denied service connection for that disability based on a finding that there was no indication of a nexus between the Veteran's bilateral hearing loss and his active service. The Veteran did not appeal that decision. The Veteran requested to reopen that claim in July 2009. An August 2009 rating decision denied reopening of the claim on the basis that new and material evidence had not been submitted. The pertinent evidence that has been received since the June 2008 rating decision includes the Veteran's statements regarding the onset of his symptoms; the Veteran's assertions regarding his military occupational specialty (MOS); the circumstances of his service that included acoustic trauma; and newly added medical records indicating a possible correlation between the Veteran's diagnosed hearing loss and his duties in active service. The Board finds that the additional evidence added to the record is new and material. It is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, reopening the claim of entitlement to service connection for bilateral hearing loss is warranted. Service Connection for Bilateral Hearing Loss The Veteran asserts that he has bilateral hearing loss as a result of acoustic trauma sustained in active service. Specifically, the Veteran reports that he has experienced difficulty hearing and understanding people since his release from active service. He described in-service noise exposure due to being constantly around machines in the ammunition sections, which involved him frequently being around firing weapons. In addition, the Veteran stated that he had negligible noise exposure after service, and denied any recreational noise exposure. A review of the Veteran's DD Form 214 shows a military occupational specialty (MOS) of ammunition specialist while in active service. The Veteran's MOS indicates that he was frequently exposed to loud noises. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, treatment for, or diagnosis of bilateral hearing loss disability while the Veteran was in active service. At a June 1962 separation examination, the Veteran's hearing was found to be intact. However, as only a whisper test was conducted at enlistment, and the whisper voice test has been found inadequate for purposes of identifying high frequency hearing loss, it cannot be determined with any certainty that the Veteran did not have decreased hearing acuity at the time of his separation from active service. Regardless, the Veteran has stated that he first experienced symptoms of hearing loss during and immediately following active service, and that his symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in this regard. On VA examination in June 2008, the Veteran was shown to have bilateral sensorineural hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. The Veteran described the circumstances of his service and acoustic trauma to the examiner. The examiner opined that the Veteran's hearing loss was less likely than not related to noise exposure during service, as the Veteran's STRs at discharge showed normal hearing and he had no complaints of hearing loss in active service. The Board finds that the June 2008 VA opinion is inadequate with regard to the etiology of the Veteran's bilateral hearing loss. First, the absence of documentation of, treatment for, or complaints of hearing loss during and after service cannot serve as the basis of a negative etiology opinion. In addition, the VA examiner did not adequately consider the Veteran's lay statements regarding onset of symptomatology and failed to address the significance of his MOS. Lastly, the examiner seemingly did not consider the lack of audiometric testing, and accepted the whisper voice test as ipso facto proof of consistent hearing acuity with no fluctuations or decrease. Accordingly, as the VA opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity, and the Board finds his statements in this regard are credible. In sum, the Veteran has a current diagnosis of bilateral hearing loss disability for VA compensation purposes and the Board concedes that the Veteran sustained acoustic trauma during active service. The Veteran has also competently and credibly reported that he first experienced hearing loss during service and that it has continued since that time. The negative medical opinion of record is not adequate and so, is not probative evidence against the claim. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for bilateral hearing loss disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been presented and reopening the claim of entitlement to service connection bilateral hearing loss disability is granted. Service connection for bilateral hearing loss disability is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs