Citation Nr: 18141384 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-23 904 DATE: October 10, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. In a final decision issued in August 2008, the Board denied service connection for bilateral hearing loss. 2. Evidence added to the record since the final August 2008 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss. 3. Resolving all doubt in his favor, the Veteran’s bilateral hearing loss is related to his acknowledged in-service noise exposure. CONCLUSIONS OF LAW 1. The August 2008 Board decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(b) (West 2002) [(2012)]; 38 C.F.R. § 20.1100 (2008) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1963 to January 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence, which was received in May 2017. 38 U.S.C. § 7105(e)(1). In May 2018, the Board determined that further medical inquiry was necessary to decide the Veteran’s claim for service connection for bilateral hearing loss, and sought an expert medical opinion from the Veterans Health Administration (VHA) pursuant to VHA Directive 1602-01, which was received in July 2018. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss. By way of background, the VA received the Veteran’s original claim for service connection for bilateral hearing loss in November 2004. In an October 2005 rating decision, the AOJ considered the Veteran’s service treatment records (STRs), post-service private treatment records, and a June 2005 VA examination report. The AOJ noted that the Veteran’s STRs were negative for complaints, treatment, or diagnosis referable to hearing loss, and there was no evidence of such within a reasonable period of time following discharge. Furthermore, while the Veteran had a current diagnosis of bilateral hearing loss and the AOJ acknowledged possible in-service noise exposure, the June 2005 VA examiner opined that his hearing was normal at the time of separation from service and there was no evidence showing that such disorder was incurred I or aggravated by service. Consequently, service connection for bilateral hearing loss was denied. Thereafter, the Veteran appealed such denial to the Board and, in an August 2008 decision, the Board denied service connection for bilateral hearing loss on the basis that the evidence of record failed to establish that such disorder was attributable to his military service. He did not appeal the Board decision within the appeal period. Furthermore, no relevant service department records were subsequently associated with the record. Thus, the August 2008 rating decision is final. 38 U.S.C. § 7105(b) (West 2002) [(2012)]; 38 C.F.R. § 20.1100 (2008) [(2017)]. Generally, a claim which has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that 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). 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. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). After the issuance of the August 2008 Board decision, the Veteran filed an application to reopen his previously denied claim for service connection for bilateral hearing loss in July 2014. Evidence received since such prior final denial includes lay statements from the Veteran (including his testimony at his Board hearing), VA and private treatment records, July 2014 and May 2017 opinions from the Veteran’s private audiologist, an October 2014 VA examination, and a July 2018 VHA opinion. In this regard, while the October 2014 VA examiner found that the Veteran’s bilateral hearing loss was less likely as not related to service, the July 2014/May 2017 audiologist and July 2018 VHA examiner found that it was at least as likely as not that such disorder was related to his in-service noise exposure. As noted previously, the Veteran’s claim for service connection for bilateral hearing loss was denied on the basis that evidence of record failed to establish that such disorder was attributable to his military service, and the newly received evidence now contains opinions relating such disorder to his in-service noise exposure. Therefore, the Board concludes that the newly received evidence is not cumulative or redundant of the evidence of record at the time of the August 2008 Board decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. Therefore, as new and material evidence has been received, the claim is reopened. The Board will now proceed with a review of the Veteran’s claim for bilateral hearing loss on a de novo basis. As the RO considered his claim on the merits in the December 2014 rating decision and a June 2015 statement of the case, the Board finds no prejudice to the Veteran in adjudicating the merits of his claim of entitlement to service connection for bilateral hearing loss at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 2. Entitlement to service connection for bilateral hearing loss. The Veteran maintains that he has bilateral hearing loss resulting from noise exposure during service as a result of his duties as a combat engineer. Therefore, he claims that service connection for such disorder is warranted. 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). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds the competent evidence of record confirms that the Veteran has current diagnosis of bilateral hearing loss for VA purposes as evidenced by the October 2014 VA examination. See 38 C.F.R. § 3.385. The Board also finds that the Veteran was exposed to noise during service as such is consistent with his duties as a combat engineer. Thus, the remaining inquiry is whether the Veteran’s current bilateral hearing loss is related to such in-service noise exposure. Service treatment records are negative for any complaints, treatment, or diagnoses referable to bilateral hearing loss. Audiometric testing at the Veteran’s December 1962 entrance examination and October 1965 separation examination both show normal puretone threshold levels at all relevant frequencies. A comparison of the two test results appears to indicate that the Veteran’s hearing acuity improved from entrance to separation. The Veteran underwent a VA examination in June 2005, at which time he reported military noise exposure from tanks, explosions, and gunfire without hearing protection, and post-service recreational noise exposure from wood working tools with hearing protection and motorcycles and hunting without hearing protection. The examiner noted that the Veteran’s hearing was normal at separation, thereby suggesting that such was not resulted to his in-service noise exposure. A July 2014 assessment from the Veteran’s private audiologist noted that it would be an “unusual occurrence” if the in-service audiological test results were accurate in depicting an improvement in the Veteran’s hearing acuity during service. The audiologist stated that, if the Veteran’s records were not reliable in this regard, and in the absence of other causes, his bilateral hearing loss is consistent with his history of military noise exposure and, in that case, is at least as likely as not caused by or a result of an event in his military service. The Veteran underwent a second VA audio examination in October 2014. The examiner concurred that the results of testing upon entrance and exit do show an improvement of hearing thresholds, which is not likely. The examiner went on to note, however, that the Veteran’s hearing was still measured to be normal at separation, regardless of threshold shift and that he did not seek treatment for hearing loss prior to 2005, which was the first time any hearing loss was documented. The examiner also noted that the Veteran had been exposed to loud machinery for many years working as a carpet cleaner following service. The examiner stated: “The Institute of Medicine Report (2005) on noise exposure and the military concluded that noise induced hearing loss occurs immediately and does not have a delayed-onset, weeks, months, or years after the exposure event. In the United States, as in other developed nations, most hearing loss has no other cause other than advancing years.” The examiner cited to other studies showing that most hearing loss observed is related to presbycusis (hearing loss related to the natural aging process) and to non-military occupational noise exposure over many years. The examiner concluded that it was therefore less likely than not that the Veteran’s hearing loss is related to service. At his April 2017 Board hearing, the Veteran testified that, while he worked at a plywood mill and as a reactor operator following service, he did not recall any significant noise levels at either location. He also testified that his job as a carpet cleaner did not require him to be consistently near vacuum noise as the vacuum engine he used was in his van, and he only brought the vacuum’s hoses and wand with him into the areas he was cleaning. In an amended report in May 2017, the Veteran’s private audiologist again noted that the in-service findings were unlikely, possibly due to a testing or calibration error at entrance or at separation. The audiologist again stated that, given the type and severity of the noise exposure the Veteran incurred during service, his hearing acuity would not have improved from entrance to separation. The audiologist also stated that the Veteran’s post-service carpet cleaning noise exposure was far less than what normally would be expected based on the Veteran’s statements. The audiologist calculated that, based on the Veteran’s age, his measured presbycusis score was far in excess of where it should be, and that other factors would likely account for over 50 percent of his hearing loss bilaterally. The examiner concluded that the 50 percent hearing loss not attributable to presbycusis “more as likely as not could be attributed to his military experience.” Therefore, in light of the evidence received since the October 2014 VA examination, the Board obtained an expert medical opinion through the VHA in July 2018. In this regard, the VHA examiner, an otolaryngologist, opined that it was at least as likely as not that the Veteran’s current bilateral hearing loss was related to his acknowledged in-service noise exposure. As rationale, he explained that he agreed with the July 2014 private audiologist’s assessment, which stated that, in the absence of other causes, the Veteran’s bilateral hearing loss was consistent with his history of military noise exposure. He noted that the Veteran did have another cause of hearing loss, which was his noise exposure as a carpet cleaner for many years after his separation from the military. However, it was unclear from the record how significant his exposure to loud noise as a carpet cleaner was. In this regard, it was noted that there was loud machinery used, but that most of the time the Veteran worked away from it. Therefore, the VHA examiner concluded that, with an absence of objective audiometry for many years, it was nearly impossible to reach a finite conclusion of what caused the Veteran’s hearing loss. He further noted that the VA acknowledged the Veteran’s exposure to hazardous noise levels during his time in service. Based on such, the VHA examiner found that there was at least a 50 percent or greater probability that the Veteran’s current bilateral hearing loss was related to his acknowledged in-service noise exposure. After a careful review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss is related to his acknowledged in-noise exposure. In this regard, the July 2014/May 2017 private audiologist, October 2014 VA examiner, and July 2018 VHA examiner are competent to offer such opinion as they are experts in their field, considered all relevant facts, and offered a rationale for their opinions. Consequently, the Board resolves all doubt in the Veteran’s favor and finds that his bilateral hearing loss is related to his acknowledged in-service noise exposure. Therefore, service connection for such disorder is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel