Citation Nr: 18151151 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-40 975 DATE: November 16, 2018 ORDER Entitlement to service connection for left ear sensorineural hearing loss is dismissed. New and material evidence has been presented to reopen a claim of entitlement to service connection for right ear sensorineural hearing loss. Entitlement to service connection for right ear sensorineural hearing loss is granted. FINDINGS OF FACT 1. During the November 2018 Board hearing, the Veteran clearly and unambiguously withdrew the claim for left ear sensorineural hearing loss. 2. A July 1993 AOJ rating decision denied service connection for right ear sensorineural hearing loss. The Veteran did not file a notice of disagreement, and that decision became final. 3. The evidence received since the prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for the issue of entitlement to service connection for right ear sensorineural hearing loss. 4. It is at least as likely as not that the Veteran’s right ear sensorineural hearing loss is etiologically related to her active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s substantive appeal on the issue of entitlement to service connection for left ear sensorineural hearing loss have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2018). 2. Following the prior final denial of July 1993, new and material evidence has been presented to reopen the claim of entitlement to service connection for right ear sensorineural hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for right ear sensorineural hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to January 1993. 1. Entitlement to service connection for left ear sensorineural hearing loss Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. A withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DiLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A claimant may withdraw a claim for a higher disability rating when he or she expresses satisfaction with the assigned rating, even when less than the maximum, available benefit has been granted. See AB v. Brown, 6 Vet. App. 35, 38 (1993). During the November 2018 Board hearing, the Veteran clearly and unambiguously stated that she wished to withdraw the appeal for the issue of entitlement to service connection for left ear sensorineural hearing loss, currently pending before the Board. She understood that she did not meet the criteria for establishing a current disability. Since the Veteran has withdrawn her appeal regarding this issue pending before the Board, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on that issue, and it is dismissed. 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for right ear sensorineural hearing loss If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders, including sensorineural hearing loss, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” such as hearing loss shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In July 1993, the AOJ denied entitlement to service connection for right ear sensorineural hearing loss on the basis of no evidence of a current condition. The evidence of record at that time included a VA examination determining right ear hearing was within normal limits by VA standards. The Veteran did not submit a notice of disagreement or additional evidence within one year of the original denial of the claim. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since the July 1993 decision includes previously unconsidered medical evidence and testimony containing evidence reflecting a current disorder. See April 2014 VA Examination; April 2012 Private Medical Records; November 2018 Hearing Testimony. This evidence relates to an unestablished fact needed to establish service connection (i.e., current condition). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran’s claim of service connection for right ear sensorineural hearing loss are met. 3. Entitlement to service connection for right ear sensorineural hearing loss ear The Veteran’s military occupational specialty was petroleum supply specialist, and she fueled and defueled aircraft. See November 2018 Board Hearing; DD 214. The Veteran’s September 1988 entrance audiogram reflects normal hearing for VA purposes, with a puretone threshold of five decibels at a frequency of 500 Hertz in the right ear. An August 1989 audiogram also reflected normal hearing, with a puretone threshold of zero decibels at a frequency of 500 Hertz in the right ear. However, the Veteran’s October 1992 separation audiogram reflected a puretone threshold of 30 decibels at a frequency of 500 Hertz in the right ear. The Board notes that this reading indicates some degree of hearing loss at the frequency of 500 Hertz in the right ear. See Hensley, 5 Vet. App. at 157. Additionally, the Veteran indicated that she had hearing loss on her report of medical history for separation from service. In April 1993, within three months after separation from service, the Veteran underwent a VA audiological examination. That examination reflected a puretone threshold of 35 decibels at a frequency of 500 Hertz in the right ear. The Veteran reported an episode of sudden right ear hearing loss during service, and the examiner noted that audiological findings “suggest an unusual low-frequency sensorineural loss in the right ear, possibly the residuals of a resolved idiopathic sudden onset hearing loss.” More recently, the Veteran has been diagnosed with right ear sensorineural hearing loss. See April 2014 VA Examination; April 2012 Private Medical Records. At her November 2018 Board hearing, the Veteran testified that she sometimes did not have hearing protection while fueling aircraft during service, and experienced several instances of temporary hearing loss. She is competent to report experiencing the symptom of temporary hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This testimony is consistent with the circumstances of her service, and the Board finds his testimony to be probative and credible. The Board observes that there is a presumption of service connection for a chronic disease such as sensorineural hearing loss, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again “at any later date, however remote.” Groves, 524 F.3d at 1309. In this case, the Veteran currently manifests right ear sensorineural hearing loss for VA purposes. Under Hensley, the Veteran’s separation audiogram and VA audiological examination within three months of discharge both reflected hearing loss in the right ear at 500 Hertz. The Veteran’s description of an episode of sudden right ear hearing loss is credible. (continued on next page) Thus, pursuant to Groves, the Board finds that the criteria for entitlement to service connection for bilateral hearing loss have been met as the Veteran demonstrated right ear hearing loss at 500 Hertz at discharge, and currently manifests right ear sensorineural hearing loss for VA purposes. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel