Citation Nr: 18143915 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-46 317 DATE: October 23, 2018 ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for right ear hearing loss is reopened. Service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. In an April 2012 rating decision, the AOJ denied the Veteran’s claim for service connection for right ear hearing loss; he was advised of the AOJ’s decision, and of his appellate rights. 2. The Veteran did not appeal the April 2012 rating decision, nor was any new and material evidence received within one year of the April 2012 rating decision. 3. Additional lay and medical evidence received since the April 2012 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 right ear hearing loss, and raises a reasonable possibility of substantiating the claim. 4. Competent, probative evidence indicates that the Veteran has current right ear hearing loss that is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The April 2012 rating decision denying service connection for right ear hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for right ear hearing loss. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2018). 3. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to July 1968. 1. Whether new and material evidence has been received to reopen a claim for service connection for right ear hearing loss. In the present case, the AOJ, by a decision entered in April 2012, denied the Veteran’s claim for service connection for right ear hearing loss. The Veteran did not appeal the decision. In fact, the next communication from the Veteran regarding hearing loss, was the January 2015 request to reopen his claim. No new and material evidence was received within a year of the April 2012 rating decision. 38 C.F.R. § 3.156 (b). As a result, the April 2012 rating decision became final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeal for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a “reasonable possibility of substantiating the claim” should be considered a component what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has also held that 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. Id. Pertinent evidence received since the April 2012 rating decision includes a positive medical opinion linking the Veteran’s current right ear hearing loss to his reported in-service noise exposure. See May 2015 private audiology opinion. This evidence was not before the adjudicators when the Veteran’s claim was denied in April 2012, and it is not cumulative or redundant of the evidence of record at the time of that decision. This new evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for right ear hearing loss - namely a nexus between the Veteran’s current disability and service - and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. 2. Entitlement to service connection for right ear hearing loss. 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 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 (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 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). In this case, the Veteran asserts that his current right ear hearing loss is related to in-service noise exposure. There is no dispute that the Veteran has a current diagnosis of right ear hearing loss, as defined by 38 C.F.R. § 3.385. See e.g. April 2015 VA examination report. Additionally, he has provided competent and credible evidence that he fired weapons without hearing protection, and was exposed to loud noise during service. Thus, the question before the Board is whether the present hearing loss disability is related to the noise exposure in service. The Board finds that the evidence is at least in equipoise. Weighing in favor of the claim is the May 2015 private audiologist’s evaluation and opinion. See May 2015 private opinion. The audiologist opined that it is more likely than not that the Veteran’s hearing loss is related to service. The clinician explained that the Veteran had reported that he was around a lot of small weapons fire and explosions while in service in Vietnam. The audiologist further explained that service personnel who have been exposed to noises in such an environment without the use of ear protection, frequently develop hearing loss as they become older. Weighing against the claim are VA opinions dated in April 2015 and July 2015. The April 2015 VA examiner determined that the Veteran’s right ear hearing loss was less likely than not related to service because information found in medical records shows that hearing loss was not present at the time of discharge. The examiner did not explain why it was clinically significant that there was no hearing loss present at discharge. Further, the source of any documented audiological results at separation, is unclear. The Board has reviewed the file and the service separation examination form appears to have left the audiological evaluation section blank. Further, in the July 2015 VA addendum opinion, a different VA examiner noted that there was no separation audiological evaluation. As the April 2015 VA examiner did not fully explain the basis for the opinion and it appears to be based upon inaccurate facts, the Board affords the opinion little to no probative value. The July 2015 VA addendum opinion was obtained following the submission of the favorable May 2015 private opinion, described above. The July 2015 VA examiner determined that the Veteran’s current right hearing loss was less likely than not related to service; however, it appears that the examiner’s opinion was based upon inaccurate facts. The examiner specifically based the negative opinion on an audiological test dated in 1976, eight years after separation. The Veteran reported that he has no recollection of any audiological test in 1976. See March 2017 correspondence. The Board has reviewed the 1976 audiological evaluation and notes that it is the second page of a periodic report of medical examination (service record) that was faxed to VA in January 2015. See November 1976 Report of Medical Examination. The first page is not in the Veteran’s file. The page that is of record does not identify the Veteran for whom it applies. As the Veteran was not in service in November 1976, has no recollection of any audiological testing in 1976, and the document does not indicate that it applied to the Veteran, the Board cannot assume that it was the Veteran’s evaluation. Because the July 2015 VA examiner’s negative opinion was based largely on the findings in the 1976 evaluation, the Board affords the opinion no probative value. The Board has no reason to reject the favorable opinion of record and finds that the evidence is at the very least in equipoise. As such, service connection for right ear hearing loss is warranted. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel