Citation Nr: 1803928	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-27 584	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

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

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

DAV Representative




ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel


INTRODUCTION

The Veteran served honorably from May 1968 to May 1970, June 1985 to January 1986, February 2004 to December 2004, and from March 2009 to September 2009.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The Veteran, through his DAV representative, testified before the undersigned Veteran's Law Judge (VLJ) at an April 2017 videoconference hearing.  A transcript of this proceeding has been associated with the record.

Although the RO ultimately adjudicated the Veteran's service connection claim for bilateral hearing loss on the merits, this claim was originally denied by the RO in an April 1972 rating decision.  Accordingly, before the Board may reopen any previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been presented sufficient to reopen a prior final decision.  See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).  Accordingly, the issue has been recharacterized as noted on the cover page of this decision.


FINDINGS OF FACT

1.  Entitlement to service connection for a hearing loss disorder was last denied by the RO in an April 1972 rating decision; but the Veteran did not initiate an appeal or submit new and material evidence within one year. 

2.  Evidence added to record since the April 1972 rating decision is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of service connection for a hearing loss disorder.

3.  The Veteran has a current hearing loss disorder that is at least as likely related to noise exposure during service.


CONCLUSIONS OF LAW

1.  The April 1972rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017).

2.  Evidence received since the April 1972 rating decision became final is new and material; and the claim of service connection for hearing loss is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017).

3.  The criteria for service connection for hearing loss have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide specific notification and assistance to the Veteran under the Veterans Claims Assistance Act (VCAA) Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified as amended at 38 C.F.R. § 3.159 (2017)).  

However, as the foregoing decision is completely favorable, the Board finds that any potential issues regarding the VA's duties to notify and assist in the development of the claim would amount to no more than harmless error, thus no further discussion is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

New and Material

The RO denied service connection for hearing loss in an April 1972 rating decision, finding that there was no nexus between the Veteran's current hearing condition and his service as "STR's [sic] are negative for ear condition and discharge exam shows normal hearing."  The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year.  No new and material evidence was received within a year.  As a result, the RO's decision became final. 

Here, the evidence received since the time of the RO's April 1972 rating decision includes VA medical opinions which indicate the existence of a connection between the Veteran's current hearing disorder and his service.  This evidence was not before adjudicators when the Veteran's claim was last denied in April 1972, and it is not cumulative or redundant of the evidence of record at the time of that decision.  It also relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim.  Accordingly, the claim is reopened.

Service Connection

The Veteran is seeking service connection for bilateral hearing loss, claiming that his current audiological troubles stem from his combat service in the Republic of Vietnam.  See April 2017 Board hearing transcript, see also DD214 (Vietnam Campaign Medal w/device, Combat Action Ribbon).

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 (2012); 38 C.F.R. § 3.303 (2017).  "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. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Facts & Analysis

Post-service medical treatment records show that the Veteran had been diagnosed as having a bilateral hearing loss disability.  See March 2012 VA examination.  Therefore, the first requirement for service connection for the Veteran's claim, the existence of a current disability, is met.  

The Veteran has also satisfied the second element of service connection, exposure to acoustic trauma while on active duty, via his combat service in the Republic of Vietnam.  See DD214.  Thus, this matter turns upon the third element of service connection, the existence of a nexus between the Veteran's service and his current disability.  

The medical evidence of record concerning this third element consists of two VA medical opinions, neither of which is negative.  Specifically, the April 2010 VA audiologist provided a diagnosis of bilateral mixed (conductive and sensorineural) hearing loss, noting the Veteran's complaints of diminished capacity since his exposure to artillery during the Vietnam War without use of hearing protection and lack of post-service exposure or family history of ear trouble.  In conclusion, the April 2010 examiner found that "it is at least as likely as not that the sensorineural component of his hearing loss is related to military noise exposure."  

The Veteran was afforded another VA examination in March 2012 as the prior examiner did not have the benefit of review of the claims file.  The March 2012 VA examiner noted the Veteran's audiological history and active duty exposure, noting a record markedly similar to the April 2010 examiner's history as relayed by the Veteran.  Although the March 2012 VA examiner did not provide a positive opinion, the examiner did not provide a negative opinion.  Rather, the examiner concluded that "it is not possible to determine if the etiology of the hearing loss is related to military noise exposure without resorting the mere speculation."  As such, this opinion is afforded no probative value.  

The Board finds the April 2010 opinion to be persuasive demonstrating that this Veteran's hearing loss was caused by his exposure to acoustic trauma during his combat service in Vietnam.  This medical opinion is competent, credible, and probative, despite attested limitations with the April 2010 examiner's inability to review the record.  Although the first opinion is admittedly imperfect, the March 2012 examiner did in fact review the record, providing a strikingly similar history as to what was recorded in the first opinion, and although not providing a positive conclusion, did in fact refuse to opine negatively.  The Board will not place its own judgment in lieu of these medical opinions, the conclusions reached are sufficient to make the following decision and are notably limited to the particular facts and circumstances of the instant case.  Moreover, as noted above there exists no contradictory medical evidence within the record to dispute the positive opinion with completely negative conclusion.  In light of the foregoing, service connection for bilateral hearing loss is warranted.  



ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs