Citation Nr: 18139754 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 16-16 059 DATE: October 1, 2018 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss was previously denied by a June 2008 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the June 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least in equipoise that the Veteran’s bilateral hearing loss was caused by his exposure to intense acoustic trauma in service. CONCLUSIONS OF LAW 1. The June 2008 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 3. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1968 to May 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and Material Evidence In June 2008, the RO denied the Veteran’s claim of service connection for bilateral hearing loss. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. In April 2016, the Veteran submitted additional evidence in the form of a letter from his wife. The Veteran also submitted medical articles that discuss the hearing loss effects of exposure to aircraft. This additional evidence was not taken into consideration during the RO’s previous determination. This evidence also relates to the etiology of the Veteran’s hearing loss, which was a basis for the prior denial. Accordingly, this evidence is new and material to the case at hand. The Board therefore finds that the Veteran’s claim is reopened. 2. Service Connection for Bilateral Hearing Loss The Veteran contends that his currently diagnosed bilateral hearing loss was caused by his exposure to loud aircraft during service. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To establish service connection, the Veteran must show: (1) a current disability, (2) a disease, injury, or event in service, and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels 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. In August 2015, the Veteran was given a hearing loss examination, which had the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 60 70 90 LEFT 5 45 50 65 75 For the Maryland CNC Test, the Veteran scored 50 percent in the right ear and 80 percent in the left ear. The examiner marked these results as valid for rating purposes. The results above therefore satisfy the first element of service connection (current disability). The record also shows that the Veteran has established the second element (disease, injury, or event in service). The Veteran contends that he was exposed to intense acoustic trauma because he worked on aircraft without ear protection. He has supported his contention with photographs showing himself on the runway without ear protection. His service records reflect that he served as an Airman and an Aviation Boatswain’s Mate. Therefore, his service records also adequately support this contention. The primary issue on appeal is whether a nexus exists between the Veteran’s well-established current disability and his service. After a thorough review of the record, the Board finds that the final element (nexus) is satisfied, as well. On August 2015 VA examination, the Veteran stated that he had been experiencing progressively worse hearing for over 30 years. In his April 2016 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran stated that he began to notice hearing loss at the end of his service and that it got progressively worse over the years. To support his claim of a nexus, in April 2016, the Veteran submitted a letter from his wife that states that she has observed that the Veteran has had poor hearing since she met him in 1974 and that his hearing has significantly declined in the past 20 years. His wife also stated that he began to consider seeking medical help for the hearing loss in 1988 but chose not to pursue it because of the cost. The Board notes that lay testimony generally cannot establish the precise degree of hearing loss decline with medical certainty. However, the Veteran’s wife is certainly competent to testify that she noticed a general decline in her husband’s ability to hear over time. The Veteran is also competent to report regarding his observations of noticing a decline in his own hearing. The Board also finds that these statements are credible because they are consistent regarding the Veteran’s decline in hearing over the years. The Veteran has also submitted scientific literature to support the finding of a nexus. The Board has reviewed these materials and finds them probative to the extent that they show that extended exposure to the high noise levels produced by aircraft presents a risk of hearing loss. The evidence that weighs against a nexus is contained in the August 2015 hearing examination. The examiner stated that it was less likely than not that his hearing loss was due to acoustic trauma from his service. The examiner noted that the Veteran’s service treatment records indicated no significant shift in hearing threshold from the time of his enlistment exam to the time of his separation exam. In the rationale, the examiner appears to have inconsistently described the Veteran’s in-service exposure to loud noises. In the rationale for finding service connection for tinnitus, the examiner stated that the Veteran was exposed to “intense noise trauma,” but when describing the Veteran’s exposure for the purposes of determining hearing loss, the examiner stated that the Veteran was subjected to “some loud noise.” The examiner did not explain why this characterization substantially differs between the two rationales. Additionally, the examiner did not specifically consider the lay testimony which stated the Veteran has experienced hearing loss since service and that his wife observed it when they first met in 1974, which was shortly after service. Accordingly, given the inconsistencies in the rationale and lack of consideration of pertinent evidence, the Board affords the August 2015 examiner’s opinion little probative weight. The Board concludes that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to his in-service noise exposure. Accordingly, the benefit of the doubt is resolved in the Veteran’s favor and service connection is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, Associate Counsel