Citation Nr: 18152915 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-51 607 DATE: November 26, 2018 ORDER The Veteran’s petition to reopen a claim for entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Evidence received since the final March 1976 rating decision that denied service connection for a bilateral hearing loss is new and material. 2. The Veteran’s bilateral hearing loss is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria to reopen the service connection claim for a bilateral hearing loss are met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a), (c) (2018). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to November 1971. The Agency of Original Jurisdiction (AOJ) has determined that these matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board, however, finds that the claim on appeal is the October 1976 claim filed by the Veteran. Correspondence from 1976 reflects that an initial claim for service connection for hearing loss was denied in a March 1976 rating decision. Notice of the denial was apparently sent to the Veteran in April 1976 but returned as undeliverable. In October 1976, the Veteran filed a new claim for hearing loss which was never addressed by VA. In November 1976, the AOJ sent the Veteran correspondence indicating it was sending him a copy of the April 1976 notice letter. As the notice that was ultimately provided to the Veteran in November 1976 noted that it was in relation to the March 1976 rating decision, the Board finds the March 1976 rating decision is final but the October 1976 claim remains pending and is the claim on appeal currently as VA has never adjudicated the October 1976 claim. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2017. A transcript of the hearing has been associated with the record. Claim to Reopen Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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. If the McLendon standard is met, the claim should be reopened. See id. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). The RO denied the Veteran’s initial claim for entitlement to service connection for hearing loss in a claim in a March 1976 rating decision, noting that there was no evidence that the Veteran’s hearing loss was incurred during service. The Veteran did not file a notice of disagreement with this decision, and no new and material evidence was submitted during in the year following the issuance of the rating decision. As such, the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). Since March 1976, substantial pertinent evidence has been added to the claims file. The Veteran submitted a private opinion dated in August 2012 which relates the Veteran’s current hearing loss to his in-service noise exposure. This evidence is new as it was not before the adjudicator in March 1976. The Board also finds that the new evidence is material because it tends to substantiate his claim for entitlement to service connection for hearing loss. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for entitlement to service connection for hearing loss. Hence, the appeal to this extent is allowed. Service Connection The Veteran contends that his current hearing loss is related to in-service noise exposure. The Board concludes that the Veteran has a current hearing loss that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For the purposes of applying the laws administered by VA, impaired hearing will be considered 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, or 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; Hensley v. Brown, 5 Vet. App. 155 (1993). At his October 2012 VA examination, the Veteran’s puretone threshold values were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 70 105 105 LEFT 5 5 65 90 95 These results reflect a hearing loss under VA regulations. 38 C.F.R. § 3.385. Additionally, in-service acoustic trauma has been conceded. As to the only remaining question on appeal, the Board finds that the evidence is at least in relative equipoise as to whether there is a nexus, or link, between the current disability and service. The October 2012 VA examiner opined that the Veteran’s hearing loss was not related to service. The examiner provided the rationale that the Veteran’s hearing was normal at enlistment and at separation, with most of the threshold shifts during service within 10 dB which was considered to be nonsignificant. The examiner noted that a 2005 study on Military and Noise Exposure by The Institute of Medicine stated that there was no scientific evidence to support delayed onset of noise induced hearing loss. The Board finds that this examination has low probative value. The examiner did not address the Veteran’s lay statements regarding the onset of his hearing loss beginning shortly after service, or the letter the Veteran submitted that he had written while in service to his mother, mentioning problems with his ears. The Veteran submitted a private opinion dated in August 2012. The examiner noted that the Veteran served in active combat in Vietnam, and that he reported an acoustic trauma during his service in Vietnam in 1970 during which time he was exposed to an explosive noise at close range. He suffered a complete loss of hearing in both ears for five to six days with gradual return to hearing in both ears but that he stated that his hearing has been affected since that time. The examiner noted that, upon discharge from service, the Veteran worked for over 20 years for General Motors as a dye maker. He was given hearing protection during this time. The examiner opined that, given the reported history and the Veteran’s exposure to noise during his military service, it was at least as likely as not that his hearing loss began as a result of military service. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Board finds that the evidence of record is at least in relative equipoise, and to the extent that any reasonable doubt remains, it is resolved in the Veteran’s favor. As such, service connection for bilateral hearing loss is granted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith