Citation Nr: 1803264 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-20 482A ) 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 of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from September 19, 1989, to May 11, 1990. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued and confirmed the prior denial of service connection for bilateral hearing loss. In March 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ), seated at the RO. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran did not appeal a July 1990 RO decision that denied service connection for bilateral hearing loss. 2. Evidence received since the July 1990 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. The Veteran has experienced recurrent symptoms of bilateral hearing loss since his separation from service to the present. CONCLUSIONS OF LAW 1. The July 1990 RO decision that that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.201, 20.302 (2017). 2. The evidence received subsequent to the July 1990 RO decision is new and material; 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. Bilateral hearing loss was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 1137, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision makers. 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. See 38 C.F.R. § 3.156 (a). The Veteran's claim for service connection for bilateral hearing loss was denied by the RO in July 1990, and the Veteran was notified of such in an August 1990 letter. No party submitted a Notice of Disagreement (NOD) to the rating decision, nor was there any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.201. As such, the July 1990 RO rating decision became final. Relevant evidence added to the record since the prior RO rating decision includes statements from the Veteran as to the onset and continuity of auditory symptoms, as well as the report of September 2011 VA examination revealing bilateral hearing loss that comports with VA standards to be considered a disability for compensation purposes. Accordingly, as the statements and clinical evidence were not previously before agency decision makers and relate to an unestablished fact necessary to substantiate the claim, the presence of bilateral hearing loss for VA compensation purposes, the evidence is new and material; the claim for service connection for bilateral hearing loss is reopened. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. For purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Organic neurological disorders, including sensorineural hearing loss, are listed as such chronic conditions under 38 C.F.R. § 3.309 (a). Such may also be presumed to have been incurred in or aggravated by service if it becomes manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends, in a number of statements, that he has bilateral hearing loss related to noise exposure during his active duty service. In his July 2011 NOD, he reported that during service he shot a lot of guns with different kinds of ammunition as an infantryman, and was alongside tanks when they discharged rounds. During his March 2017 Board hearing, he asserted that he experienced the sensation of decreased hearing acuity, bilaterally, since separation from service, and did not have health insurance for many years such that he did not seek treatment until recently. The Veteran's Form DD-214, his service separation form, shows that his military occupational specialty (MOS) was infantryman. The Veteran is competent to report that he experienced in-service noise exposure, as described, and there is no evidence that he is not credible in this regard. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Accordingly, considering the Veteran's lay statements and the service records supporting such, the Veteran's in-service exposure to acoustic trauma is conceded. On VA examination in September 2011, the Veteran's puretone thresholds, in decibels, for the right ear were 20, 15, 15, 20, 50, and for the left ear were 25, 20, 10, 20, 40, each measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. There is evidence of an auditory threshold of 40 decibels or greater at least one of the specified frequencies; and the Veteran's bilateral hearing loss thus meets the VA requirements for consideration as a disability. Id. The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of bilateral hearing loss. The pertinent regulation does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On his service entrance examination in July 1989, the Veteran's puretone thresholds, in decibels, for the right ear were 5, 5, 0, 10, 20, 45, and for the left ear were 10, 5, 0, 5, 5, 35, each measured at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. On his service entrance examination in March 1990, the Veteran's puretone thresholds, in decibels, for the right ear were 10, 0, 0, 5, 20, 50, and for the left ear were 20, 5, 5, 15, 10, 40, each measured at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. The threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. 155, 157. While the Veteran presented with some degree of hearing loss in the right ear, measured at 45 decibels at 6000 Hertz and some degree of hearing loss in the left ear, measured at 35 decibels at 6000 Hertz, such does not meet VA's definition of hearing loss disability, and thus not a "defect, infirmity, or disorder" such that 38 U.S.C.A. § 1111 would apply. The Veteran is entitled to the presumption of soundness. The VA examiner, in September 2011, opined that the Veteran's bilateral hearing loss was not related to service, and reasoned that the Veteran did not demonstrate a significant shift in hearing acuity at the time of his separation from service and his bilateral hearing loss had to have occurred after separation, as there was no scientific support for a delayed onset of hearing loss after noise exposure. The VA opinion, however, was rendered without taking into account the Veteran's competent and credible, and thus probative, lay statements as to experiencing the sensation of decreased hearing acuity continuously since separation from service. The Veteran is competent to report experiencing such and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. The negative VA etiological opinion is thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In sum, of record is evidence of bilateral hearing loss that meets the VA requirements for consideration as a disability, conceded in-service acoustic trauma, as well as the Veteran's probative lay statements that he experienced continuous symptoms of decreased hearing acuity since separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for bilateral hearing loss is warranted. ORDER New and material evidence having been received; the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs