Citation Nr: 18145521 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-36 905 DATE: October 29, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. An April 2005 rating decision denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss. 2. Evidence received since the April 2005 rating decision includes private and VA medical examinations and the Veteran’s lay statements. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is due to in-service noise exposure. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1969 to August 1971, with subsequent reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. at 117-18. In this case, an April 2005 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss, as there was insufficient evidence of record connecting the Veteran’s diagnosed bilateral hearing loss and service. As this decision was not challenged, it has become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for bilateral hearing loss in January 2014. Evidence received since the April 2005 denial includes multiple VA and private examinations and opinion, as well as the Veteran’s lay statements. This evidence is new because it was not previously associated with the claims file. The evidence is material because it relates to unestablished facts necessary to establish the Veteran’s claim, specifically, establishing a continuity of hearing loss symptomology since service. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claim for entitlement to service connection for bilateral hearing loss is reopened. Service Connection The Veteran claims that he is entitled to service connection for bilateral hearing loss due to his in-service noise exposure. The Board notes that the March 2016 VA audiological examination reflects bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. As such, a current disability for the Veteran’s claim has been established. Regarding the in-service element, the Veteran maintains that while on active duty in the United States Navy, he was exposed to load noise as an engineering officer where he was responsible for the ship’s machinery, which included artillery. He was further exposed to excessive noise as an assistant gunnery officer, where he sat behind two artillery pieces during live fire exercises and operations. The Veteran maintains that the noise from the firing of shells was deafening and concussive. His job often required him to remove his ear protection to manage operations. The Veteran reported experiencing hearing difficulties in service. A review of the Veteran’s service treatment records corroborates the Veteran’s claims, for there is an indication of some worsening of the Veteran’s hearing in his 1969 and 1971 examinations. Thus, the Board finds that the in-service element of service connection has been established. On March 2016 VA audiological examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was less likely as not (less than a 50 percent or more probability) caused by or a result of an event in military service. The examiner reasoned that there was no ratable hearing loss in service. The Board notes that the examiner did not take the Veteran’s worsening hearing into consideration. Thus, the opinion is afforded little probative weight. Also of record is a June 2015 private medical examination, which noted the Veteran’s bilateral hearing loss. Outside of the military, there was no excessive occupational or non-occupational noise exposure. The private physician also described the Veteran’s military noise exposure was discussed above. However, as the physician did not appear to have access to the Veteran’s service treatment records, she was unable to provide a nexus opinion. Finally, of record are VA out-patient treatment records, which reflect the Veteran receiving consistent follow-up treatment for his bilateral hearing loss. The Veteran reported that he experienced hearing loss since service. In light of the foregoing, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. The Board finds the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to service. Although the March 2016 VA audiologist provided a negative nexus opinion, the Veteran has competently and credibly provided consistent statements regarding the onset of his bilateral hearing loss and his continuation and worsening of symptomology since service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel