Citation Nr: 18147654 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-42 371 DATE: November 6, 2018 ORDER The application to reopen a claim for entitlement to service connection for a bilateral hearing loss disability is granted. Service connection for a bilateral hearing loss disability is granted. FINDINGS OF FACT 1. A December 2011 rating decision denied the Veteran’s claim of service connection for a bilateral hearing loss disability. The Veteran was informed of the decision but he did not perfect an appeal for the decision nor did he submit new and material evidence within a year of the decision. Therefore, the decision became final. 2. New and material evidence sufficient to reopen the previously denied issue of entitlement to service connection for bilateral hearing loss disability has been received. 3. Resolving reasonable doubt in his favor, the Veteran’s bilateral hearing loss disability is attributable to service. CONCLUSIONS OF LAW 1. The December 2011 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the previously denied issue of entitlement to service connection for a bilateral hearing loss disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216 (1994). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, service connection for bilateral hearing loss disability was denied in a December 2011 rating decision. The RO found that the Veteran did not currently meet the criteria for hearing loss disability for VA purposes. The Veteran was informed of the decision and he did not appeal nor was new and material evidence received within a year of the decision. As such, the decision became final. The evidence added to the record since the December 2011 rating decision includes an October 2013 audiology VA examination which diagnoses the Veteran with hearing loss disability for VA purposes. Therefore, the evidence added to the record cures an evidentiary defect which existed at the time of the prior denial, namely, the lack of a diagnosed disability. As such, the Board finds that new and material evidence has been presented and the claim is reopened. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is seeking service connection for a bilateral hearing loss disability. The Veteran alleges that his hearing loss disability is the result of his active military service, including in-service noise exposure. After a careful review of the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a bilateral hearing loss disability is warranted. First, the Veteran has current bilateral sensorineural hearing loss disability for VA purposes. The Veteran was afforded a VA audiological examination in September 2013. At the time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 55 70 65 70 LEFT 15 20 70 80 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 65 decibels in the right ear and 63 decibels in the left ear. The speech recognition score on the Maryland CNC word list was 88 percent for the right ear and 90 percent for the left ear. Hearing acuity levels in both of the Veteran’s ears meet the requirements of 38 C.F.R. § 3.385. Second, the Veteran has consistently stated that he was exposed to noise beginning in 1969 when four NVA mortar rounds exploded within 25 feet of his position, as well as his sleeping within 100 feet of a large weapon regularly and repeatedly firing during the night. The record shows that the Veteran served in Vietnam. His contentions ar consistent with his service. Therefore, the Board will accept that the Veteran was exposed to hazardous noise in service. As such, the second element of service connection is met. Finally, concerning the third element of service connection, evidence of a nexus between the Veteran’s currently diagnosed bilateral hearing loss disability and his service, the Veteran stated that he experienced hearing loss right after his separation from service in 1969. The Board acknowledges the September 2013 VA opinion that states that the Veteran’s bilateral hearing loss disability is not at least as likely as not caused by or a result of an event in military service. However, the reasoning provided is inadequate and the Board accords it little probative weight. Indeed, the opinion is based primarily on the fact that hearing loss was not present at separation and that the Veteran reports a civilian occupational and recreational history of noise exposure while farming and target shooting. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley, supra. Further, the Veteran stated that he did experience hearing loss upon separation in 1969 and it was not properly recorded in his discharge examination. The Board finds the Veteran competent and credible in his allegations of what occurred in service and thereafter regarding his noise exposure. Therefore, the Board finds that the evidence is in equipoise as to whether the Veteran’s bilateral hearing loss disability was incurred in service. Because the relevant evidence is in equipoise, the Board resolves all reasonable doubt in the Veteran’s favor, and finds that it is at least as likely as not that his bilateral hearing loss disability is related to active duty service. Service connection is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Kerner, Associate Counsel