Citation Nr: 18143403 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 18-16 640 DATE: October 19, 2018 ORDER New and material evidence having been received, the petition to reopen a claim for service connection for left ear hearing loss is granted. New and material evidence having been received, the petition to reopen a claim for service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. Entitlement to service connection for left and right ear hearing loss was denied in a November 2010 unappealed Board decision. 2. Evidence received since the November 2010 denial of service connection for left and right ear hearing loss relates to a previously unestablished fact necessary to substantiate the claim for service connection for left and right ear hearing loss. 3. The evidence is at least in equipoise regarding whether the Veteran’s left ear hearing loss is etiologically related to active duty service. 4. The Veteran does not have hearing loss in his right ear for VA purposes. CONCLUSIONS OF LAW 1. The November 2010 Board decision denying service connection for left and right ear hearing loss is final and new and material evidence has been received since that denial, warranting a reopening of the claim for service connection of left and right ear hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1959 to July 1968. Among other commendations the Veteran received for his honorable service, he was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be (1) a competent diagnosis of a current disability;(2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels or dBs) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). However, for VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. Certain chronic diseases, including organic disease of the nervous system, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Whether new and material evidence has been submitted to reopen a claim for service connection for left and right ear hearing loss The Veteran is seeking to reopen a previously denied claim of service connection for left and right ear hearing loss. In general, decisions of the agency of original jurisdiction or the Board that are not appealed in the prescribed time period are final. See, e.g., 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. His claim for service connection for a left and right ear hearing loss disability was denied by the Board in a November 2010 decision, which the Veteran did not appeal to the United States Court of Appeals for Veterans Claims (Court). Decisions of the Board are final on the date they are issued. 38 C.F.R. § 20.1100(a). Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. 5108; 38 C.F.R. 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The November 2010 Board decision that denied service connection for left and right ear hearing loss in part due to the lack of evidence connecting current hearing loss to any incident or event of service. However, since that time, the Veteran submitted a positive private nexus opinion from March 2017 regarding such a link between left and right ear hearing loss and active duty service. The record also contains an October 2018 response from a VA audiologist to request from the Board regarding the nature and etiology of any current hearing loss. In that response, the audiologist also provided a positive nexus opinion. This evidence is new because it was not considered by the Board at the time of the November 2010 denial and it is material because it relates to an unestablished fact necessary to substantiate the claim. As such, the Board finds that the criteria for reopening the Veteran’s claim for service connection for left and right ear hearing loss have been met. 2. Entitlement to service connection for left ear hearing loss At the outset, the Board recognizes that numerous audiometric test results affirmatively establish the presence of hearing loss in the Veteran’s left ear for VA purposes. Specifically, a private examination report from March 2017 includes thresholds of 45 decibels and 55 decibels in the left hear at the 3000 Hz and 4000 Hz frequencies, respectively. The Board also finds that the Veteran’s military occupational specialty and his competent testimony at the May 2018 Board hearing regarding his noise exposure in service represent competent, credible, and probative evidence regarding the question of whether there is any in-service event that could have caused the Veteran’s left ear hearing loss. As such, the Board will turn to the central question of whether this hearing loss is etiologically related to that in-service acoustic trauma and significant noise exposure. A review of the Veteran’s treatment records indicates that he did not undergo an audiometric examination at the time of his enlistment, but a spoken voice and whispered voice test resulted in a score of 15 out of 15. At the time of his July 1968 separation examination, the Veteran was found to have audiometric findings as follows: Hertz 500 1000 2000 3000 4000 Right 5 5 5 5 5 Left 10 5 15 10 5 As none of the hearing thresholds in the Veteran’s left ear at these frequencies were 40 decibels or greater, the Board does not find that the Veteran had hearing loss for VA purposes at the time of his separation from active duty. Turning to the medical opinion evidence, in December 2006, VA obtained an etiological opinion from an audiologist to address the question of whether the Veteran’s service caused any current hearing loss. That audiologist stated that the electronic hearing testing conducted at discharge suggested that the Veteran did not have hearing damage in service and that it was therefore less likely than not that the Veteran’s hearing loss and tinnitus were caused by or a result of noise exposure in service. VA obtained an additional opinion concerning the etiology of the Veteran’s hearing loss in May 2017. Like the earlier VA examiner, the audiologist who conducted this evaluation also cited the normal hearing evaluation results at separation in determining that it was less likely than not that the Veteran’s left ear hearing loss was a result of military service. The examiners are certainly permitted to provide an opinion on the complex medical subject of the etiology of any current hearing loss disability. The Board also has no reason to doubt the credibility of their statements and finds that their negative opinions represent probative evidence against a finding of service connection. However, the record also contains multiple opinions from apparently equally qualified audiologists suggesting that a link does exist between the Veteran’s active duty service and his current left ear hearing loss. Specifically, the Veteran attended two separate private audiological examination in March 2017 to address that question. Noting that the Veteran’s audiometric findings at separation included evidence of “the beginnings of a noise notch,” as reflected by the thresholds at the 2000 and 3000 frequencies, the first examiner suggested that these thresholds represented compelling evidence of noise damage during military service. Given the lack of reports of occupational or recreational noise exposure, the discrepancy in hearing thresholds between the Veteran’s ears that the examiner attributed to the way the Veteran held a rifle in service, and the fact that the Veteran’s hearing was poorer than would be anticipated based on his age alone, the examiner opined that there was no compelling cause of the Veteran’s hearing loss other than his military noise exposure. As such, the examiner stated that it was his opinion that the Veteran’s hearing loss was as likely as not the result of military noise exposure. The audiologist who evaluated the Veteran the following day appears to have come to a similar conclusion. After reviewing the Veteran’s case history and the current audiometric opinions, the second audiologist stated that the Veteran’s military service may have contributed to his hearing loss and tinnitus. Due to the conflicting medical opinions in this claim, the Board sought a VA medical opinion from a qualified audiologist and received a response in October 2018. After reviewing the medical record, the audiologist who provided that opinion agreed that the Veteran had a high likelihood of in-service noise exposure. She also stated that the specific spoken voice or whisper test that the Veteran underwent at the time of his enlistment was a crude measure that did not accurately detect high frequency hearing loss, which is associated with noise exposure. As such, she found that it was impossible to determine whether there was a significant threshold shift in service. Given the evidence of a high likelihood of noise exposure in service, the lack of evidence that a threshold shift did not occur, and the lack of significant post-service noise exposure, the examiner opined that it was at least as likely as not that the Veteran’s hearing loss in each ear was the result of his in-service noise exposure. Ultimately, the record contains competent, credible, and probative medical opinions that is for and against the claim. As the evidence is in a state of equipoise, VA is required to resolve doubt in the Veteran’s favor. As such, the criteria for service connection for left ear hearing loss have been met and that claim must be granted. 3. Entitlement to service connection for right ear hearing loss The Board recognizes that the positive nexus opinions described above did not limit their opinions to only the left ear, but also suggested that the Veteran had right ear hearing loss that was attributable to service. The Veteran similarly contends that his current hearing loss is due to his active duty service. The Board finds that the Veteran is competent to report the observable perception of diminished hearing and does not doubt the sincerity of his statements. However, the evidence does not indicate he has the requisite knowledge, training, or experience to provide a competent statement regarding the complex task of quantifying any right ear hearing loss in terms of the specific clinical findings set forth in 38 C.F.R. § 3.385. Ultimately, a review of the evidence relating to the Veteran’s hearing in his right ear fails to uncover any competent evidence that the Veteran has had hearing loss for VA purposes in that ear at any point since he filed an intent to file form in February 2017. As explained above, for VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of those frequencies 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 record includes three separate audiometric examination reports since the Veteran’s February 2017 submission of a form notifying VA of his intent to file a claim. The Veteran underwent two such evaluations with non-VA audiologists in March 2017. Both examinations found the Veteran to have speech discrimination scores of 96% in his right ear using the Maryland CNC word list. Audiometric findings in the right ear were as follows: Hertz 500 1000 2000 3000 4000 March 13 25 25 25 25 30 March 14 25 20 10 20 35 Accordingly, these non-VA speech discrimination scores and audiometric hearing thresholds did not rise to the minimum level to be considered a hearing loss disability under 38 C.F.R. § 3.385. As stated above, the Veteran also attended an audiological examination that was arranged by VA in May 2017 with a private contractor. At that time, the Veteran was again found to have a speech discrimination score in the right ear using the Maryland CNC word list of 96 percent. An audiometric evaluation found him to have the following hearing thresholds: Hertz 500 1000 2000 3000 4000 Right 25 20 20 25 35 As none of these thresholds met or exceeded 40 decibels and the Veteran did not have thresholds of at least 26 decibels in three or more of these frequencies, the Board cannot find that this test result establishes a right ear hearing loss for VA purposes. No other audiometric findings relating to the Veteran’s right ear hearing abilities appears in the record since February 2017. (Continued on the next page)   In sum, because the Board finds that there is no competent evidence documenting abnormal hearing for VA purposes in accordance with 38 C.F.R. § 3.385, the Board finds that the foundational criterion of the presence of a current right ear hearing loss disability has not been met. Accordingly, the claim for service connection for right ear hearing loss must be denied. Should the Veteran’s hearing deteriorate, he is certainly free to apply to reopen his claim for service connection for a right ear hearing loss disability. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel