Citation Nr: 18145001 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-22 364 DATE: October 25, 2018 ORDER As new and material evidence has been received, the application to reopen a claim if entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. A November 2012 Board decision denied service connection for bilateral hearing loss. That decision is final. 2. Evidence received since the final November 2012 Board decision is new and material and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. Bilateral hearing loss is the result of disease or injury incurred during the Veteran’s military service. CONCLUSIONS OF LAW 1. The November 2012 Board decision is final regarding the claim for service connection for bilateral hearing loss. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGs AND CONCLUSIONs The Veteran served on active duty from December 1967 to December 1969. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim has an extensive appellate history before the Board and the Court of Appeals for Veterans Claims that is incorporated herein by reference. The Board notes that the record contains neither an informal request nor an application to reopen the Veteran’s claim for service connection for bilateral hearing loss which the Board denied in November 2012. The record does contain correspondence from the Veteran’s representative regarding a claim for TDIU that the RO construed to be a request to reopen the claim for service connection for bilateral hearing loss. See Correspondence, dated March 22, 2013. A June 2013 rating decision denied reopening of the claim, and the Veteran submitted a timely NOD. See Rating Decision, dated June 12, 2013, and NOD, dated February 11, 2014. Though no request to reopen is of record, the Veteran has continuously prosecuted this claim; and it is properly before the Board. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss The Veteran seeks to reopen his claim of entitlement to service connection for bilateral hearing loss. New and material evidence is required in that regard. New evidence means existing evidence not previously submitted to VA. 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). Service connection for bilateral hearing loss was denied in a prior November 2012 Board decision. Since that time a private audiological examination conducted in August 2018 has been submitted wherein the examiner opined that the Veteran’s bilateral hearing loss is as likely as not related to his military service. The Board finds that this examination is sufficient to reopen the claim of entitlement to service for bilateral hearing loss. As the Board has determined that new and material evidence has been received as to the Veteran's claim, it is necessary to consider whether he would be prejudiced by the Board proceeding to a decision on the merits. In this case, however, the claim is granted and there is no prejudice to the Veteran. 2. Service connection for bilateral hearing loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, the evidence 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. For purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Organic neurological disorders, including sensorineural hearing loss, are listed as such chronic conditions under 38 C.F.R. § 3.309(a). Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. Multiple audiological evaluations establish that the Veteran has a current hearing disability that satisfies the criteria of 38 C.F.R. § 3.385. June 2005 and March 2009 VA examiners diagnosed high frequency sensorineural hearing loss. The first element for entitlement to service connection, current disability, has thus been met. Regarding the second element, in-service incurrence of a disease or injury, the Board observed that the Veteran has reported acoustic trauma in the military while serving as a truck driver. While the Veteran’s service treatment records do not explicitly discuss noise exposure, the Veteran is competent to describe the nature and extent of his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The second element has been met. Thus, the remaining question pertaining to service connection is whether the Veteran’s current bilateral hearing loss is related to his military noise exposure. There are multiple conflicting opinions in this case. Upon review of the opinions, the Board finds that the main point of contention is whether or not the Veteran wore hearing protection during his civilian occupation as fire fighter or during his recreational activities which would lessen the impact of this post-service noise exposure as compared to his military noise exposure. In this regard, the Board notes that in documenting the Veteran’s history of noise exposure both the June 2005 and March 2009 VA examiners reported that after his military service the Veteran worked for many years as a fire fighter without hearing protection. They also noted a history of recreational hunting without hearing protection. In contrast, the private audiologist who conducted the August 2018 notes the Veteran’s report that “nothing in his civilian occupation as a Fireman, Fire Chief, and Fire Marshall with ear protection nor his recreational activities were comparable to [his] military hazardous noise exposure.” Emphasis added. The audiologist opined that the Veteran’s hearing loss was as likely as not related to noise exposure during his military service. The Board finds that the evidence in favor of and against the Veteran's claim is in equipoise. While the Board notes that the Veteran's apparent inconsistency in reporting whether he used hearing protection while working as a fire fighter and during his recreational activities (reported no during 2005 and 2009 VA examinations and reported yes during a 2018 private examination) calls the credibility of his assertions into question, the Board finds the evidence insufficient to declare one report more credible than another. Outside of this history itself, the Board sees no basis for determining the Veteran was being truthful in one instance and not in another. [The Board points out that this rationale was also used in its November 2012 decision to justify granting service connection for tinnitus.] Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board (Continued on the next page)   concludes it is at least as likely as not that the Veteran's bilateral hearing loss had its onset in service. Thus, service connection is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel