Citation Nr: 18145125 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-06 439 DATE: October 26, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for a bilateral hearing loss disability is reopened. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded for additional development.   FINDINGS OF FACT 1. The claim of entitlement to service connection for a bilateral hearing loss disability was originally denied in a September 1986 Board decision. An August 2004 rating decision denied the petition to reopen the Veteran’s previously denied claim of entitlement to service connection for a bilateral hearing loss disability. The decision was not appealed and no new and material evidence was submitted within one year of the decision; the decision became final. 2. Some of the evidence received since the August 2004 denial relates to unestablished facts necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied the petition to reopen the claim of entitlement to service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted, and the claim of entitlement to service connection for a bilateral hearing loss disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to August 1969. He was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Bronze Star Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for a bilateral hearing loss disability To reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. See Shade v. Shinseki, 24 Vet. App. 110, 118-19, 123 (2010). If the McLendon standard is met, the claim should be reopened. See id. Here, the claim of entitlement to service connection for a bilateral hearing loss disability was originally denied in a September 1986 Board decision. An August 2004 rating decision denied the petition to reopen the Veteran’s previously denied claim of entitlement to service connection for a bilateral hearing loss disability. The decision was not appealed and no new and material evidence was submitted within one year of the decision; the decision became final. The evidence received since the August 2004 denial includes information that relates to unestablished facts necessary to substantiate the claim. Accordingly, the claim is granted to this extent. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that service connection for bilateral hearing loss is warranted as a result of his duties in service. He reports that as an Ammunition Resupply Sergeant in service, he was surrounded by artillery noise; noise from small arms fires, explosions, and Howitzers; and the noise of running jet engines when he had to hook up airlift cargo. He states that he was never given hearing protection during his tour in Vietnam, where he hooked up hundreds of supply loads during those 18 months. The Veteran also indicates that a tank fired near a truck he was riding in and caused his ears to ring for two days. He also contends that he was not given an audiogram prior to discharge and was unaware at how his hearing became worse. He denies post-service occupational noise exposure. The Veteran’s Report of Separation from the Armed Forces (DD-214) notes that his military occupational specialty (MOS) was Ammunition Supply Sergeant. The Board finds that the Veteran’s military history and his contentions regarding in-service exposure to excessive levels of noise are consistent with the circumstances of his service. Service treatment records show that the Veteran denied ear or hearing trouble at the January 1966 enlistment examination. Audiometric testing (measured in ISO units) conducted at enlistment revealed the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 5 (15) 25 (35) 35 (40) LEFT 5 (20) 5 (15) 5 (15) 15 (25) 15 (20) (Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses). For 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; when the auditory thresholds for at least three of the above 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. However, “when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. The Board notes that the audiometric readings for the Veteran’s right ear at the January 1966 enlistment examination meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385. As right ear hearing loss was noted at entry, the presumption of soundness does not attach for the Veteran’s right ear hearing loss. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304; McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). Service treatment records further reflect that at a February 1966 visit, the Veteran had a diagnosis of otitis media and findings of an inflamed and infected left tympanic membrane. The Veteran reported ear trouble at his August 1969 separation examination but no audiogram was conducted. Post-service treatment records document complaints and diagnoses of hearing loss due to in-service noise exposure since 1985. The Veteran has not yet been afforded a VA examination in connection with his service connection claim for this condition. Given the Veteran’s reports attributing his current condition to his period of service, the Board finds that a VA examination is needed. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, including VA or private, who has treated him for his hearing loss. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. 2. Obtain VA treatment records since August 2018. 3. Schedule the Veteran for a VA audiological examination to address the current nature and severity of his bilateral hearing loss disability. The examiner should respond to the following: (a.) Whether a right ear hearing impairment, as existing at service entrance, was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. The examiner should specifically consider that the Veteran reported no ear trouble at his January 1966 enlistment examination but did report ear trouble at his August 1969 separation examination, although no audiogram testing was conducted. (Continued on the next page)   (b.) Whether it is at least as likely as not that the left ear hearing loss disability had its onset in or is related to any in-service disease, event, or injury, including conceded noise exposure during service; or that it manifested within a year of separation from service. The examiner should specifically address the Veteran’s reports of worsening hearing throughout service and thereafter. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel