Citation Nr: 18152724 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-40 110 DATE: November 27, 2018 November 27, 2018 ORDER New and material evidence has been received to reopen a claim of service connection for right ear hearing loss disability. Entitlement to service connection for a right ear hearing loss disability is granted. FINDINGS OF FACT 1. In an unappealed October 2001 rating decision, the RO denied the Veteran's claim for service connection for a right ear hearing loss disability. 2. Evidence received since the last final rating decision in October 2001 raises a reasonable possibility of substantiating the claim of service connection for a right ear hearing loss disability. 3. Resolving all doubt in favor of the Veteran, the weight of the competent and credible lay and medical evidence shows that the Veteran’s right ear hearing loss is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The October 2001 rating decision denying service connection for a right ear hearing loss disability is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the October 2001 rating decision is new and material, and the claim of service connection for a right ear hearing loss disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from 1979 to 1985 and March 1986 to March 2000. This matter comes to the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). New and Material Evidence - Applicable Laws and Regulations The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 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. 38 C.F.R. § 3.156 (a). 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). 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). Furthermore, 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In an October 2001 rating decision, the RO denied the Veteran’s claim for service connection of right ear hearing loss, in pertinent part, because there was no evidence that the Veteran had a hearing loss disability for VA compensation purposes. The Veteran did not appeal the October 2001 rating decision; nor was new and material received within a year of notification of the rating decision. 38 C.F.R. § 3.156 (b). Therefore, the rating decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104 (a). Since the October 2001 rating decision was the final disallowance, the Board must review all the evidence submitted since that rating decision to determine whether the Veteran’s claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). The last final disallowance, denied service connection because the RO found no evidence of hearing loss for VA compensation purposes. Evidence received since the October 2001 rating decision includes a May 2014 VA Examination, an July 2014 VA examination and an August 2014 letter from the Veteran regarding the cause of his hearing loss. The evidence submitted by the Veteran is new as it was not previously received and reviewed by the RO. The evidence, specifically the VA examinations, are material because they provide evidence that the Veteran does have right ear hearing loss for VA compensation purposes. Since new evidence with a reasonable possibility of substantiating the claim has been received, the claim for service connection for right ear hearing loss is reopened. Service Connection- Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in-service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 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. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Analysis The Veteran asserts that he has a right ear hearing loss disability, which he attributes to acoustic trauma sustained during his military service. Initially, the Board finds that the Veteran has a right ear hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. During a May 2014 VA audiology examination, right ear hearing loss disability for VA compensation purposes was diagnosed as reflected by the following pure tone thresholds: HERTZ AVG 500 1000 2000 3000 4000 RIGHT 65 55 55 60 65 80 The Veteran’s service treatment records are negative for any hearing complaints, treatment, or diagnosis. However, VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board next finds that the Veteran’s in-service event of exposure to hazardous noise is conceded based on the Veteran’s military occupational specialty (MOS), as a maintenance technician, which is consistent with acoustic trauma. See DD-214 Certificate for Release or Discharge from Active Duty. Therefore, the dispositive issue here is whether there is a nexus between the Veteran’s right ear hearing loss disability and the acoustic trauma he experienced during service. The record contains two medical opinions addressing the etiology of the Veteran’s right ear hearing loss. During the May 2014 examination, the examiner, a VA audiologist, opined that the Veteran’s current right ear hearing loss disability was less likely than not related to his active duty military service. The examiner further noted that the Veteran had normal hearing at enlistment and separation and excellent thresholds on his prior examination. Nonetheless, the Board finds this opinion inadequate because it was improperly based on a lack of medical evidence of hearing loss in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion). Moreover, as explained above, VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. Finally, the May 2014 VA audiologist did not address the Veteran's competent and credible reports of having had hearing difficulty since service. For these reasons, the May 2014 VA opinion is not only inadequate, but contains little to no probative value. On the contrary, the Veteran was subsequently examined in July 2014 for his right ear hearing loss by a VA staff otolaryngologist who opined that the Veteran’s right ear hearing loss is etiologically related to his in-service noise exposure. The examiner stated that because the Veteran has worked in information technology since his separation from service, where there is little noise exposure, the right ear threshold shift must have been caused by his in-service acoustic trauma. The examiner noted that the Veteran’s medical records, including a copy of the May 2014 VA audiological examination report were reviewed prior to this VA examination. See July 2014 VA Medical Treatment Record. The Board finds this opinion adequate and highly probative. It was rendered after having interviewed and examined the Veteran and a review of the relevant evidence, to include the May 2014 VA opinion. Based on the above, the Board finds that the probative weight of the July 2014 VA examination outweighs the May 2014 VA opinion. In light of the medical evidence of a current right ear hearing loss disability, the in-service noise exposure, and the probative July 2014 nexus opinion, the Board, resolving any reasonable doubt in the Veteran’s favor, finds that service connection for a right ear hearing loss disability is warranted. 38 C.F.R. §§ 3.102, 3.303. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Counsel