Citation Nr: 18153345 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-35 930A DATE: November 27, 2018 ORDER The request to reopen the issue of entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a right ear hearing loss disability is granted. FINDINGS OF FACT 1. Service connection for, inter alia, sensorineural hearing loss in the left ear was denied in a June 1973 rating decision. The Veteran was informed of the decision and he did not appeal. 2. Evidence submitted since the RO’s June 1973 rating decision is relevant and probative of the issue at hand. 3. The Veteran’s left ear hearing loss disability pre-existed service and was aggravated by noise exposure in service. 4. The Veteran’s right ear hearing loss disability is related to noise exposure in service. CONCLUSIONS OF LAW 1. The June 1973 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the June 1973 decision is new and material to the issue of entitlement to sensorineural hearing loss in the left ear, and the issue is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for left ear hearing loss, based on service aggravation, have been met. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.385 (2017). 4. The criteria for service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107(b) (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 September 1968 to September 1972. 1. The request to reopen the issue of entitlement to service connection for a left ear hearing loss disability is granted. A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, 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). In June 1973, the RO denied, inter alia, the Veteran’s claim for service connection for sensorineural hearing loss in the left ear. The RO found that the Veteran had a high frequency hearing loss in the left ear at induction. At separation, he also had a hearing loss in the high frequency ranges of the left ear. The hearing loss at induction represented a 0 percent evaluation and at separation also represented a 0 percent evaluation. The RO concluded that there was no history of trauma nor of any evidence of aggravation to the pre-existing left ear hearing condition. The Veteran did not appeal, and the decision became final. The Board has made a careful review of the record, and concludes that since the prior denial, material evidence has been associated with the file, affording sufficient grounds to reopen the Veteran’s claim. Specifically, the Board points to a March 2015 VA examination, in which the Veteran reported being exposed to jet aircraft noise while serving aboard an aircraft carrier. This specific claim of noise exposure is not recounted earlier in the record and addresses an evidentiary defect that existed at the time of the prior denial. As new and material evidence has been received, the Board concludes that the issue of entitlement to service connection for a left ear hearing loss disability is reopened and, in this regard, the Veteran’s appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to service connection for a left ear hearing loss disability is granted. 3. Entitlement to service connection for a right ear hearing loss disability is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish a right to compensation for a present disability, a Veteran must show: (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- the so-called “nexus” requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A pre-existing injury or disease is considered to have been aggravated by active service if there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). However, aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Court has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran meets the first element of service connection, as he has a diagnosed hearing loss disability in both ears. See VA examination, March 2015. The Veteran contends that he served as an aviation machinist mate aboard an aircraft carrier and was exposed to jet aircraft noise. The Board concedes in-service noise exposure. Therefore, the remaining question is whether the currently diagnosed bilateral hearing loss disability is related to service. The Board acknowledges the March 2015 VA examiner’s opinion that the Veteran’s right ear 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. The examiner based the opinion primarily on the fact that there were no significant threshold shifts during service. 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. Regarding the right ear, the Board is left with a record which shows that the Veteran was exposed to noise in service, with limited post-service exposure, and that he currently has a right hearing loss disability which cannot be conclusively disassociated from his noise exposure in service. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a right ear hearing loss disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the left ear, the Board notes that the Veteran had a left ear hearing loss disability upon entrance to service. See STR, July 1968. Thus, it pre-existed service and this issue is one of service aggravation. The March 2015 VA examination shows a left ear hearing loss disability that has significantly worsened since separation from service. See STR, August 1972. The examiner opined that because there was no threshold shift while in service, the pre-existing hearing loss was not aggravated beyond normal progression. See VA examination, March 2015. However, the Board notes that the March 2015 examiner did link the Veteran’s tinnitus disability to military noise exposure, demonstrating that noise exposure had some lasting physical impact. The Board also notes that the examiner did not make a specific finding that the increase in disability is due to the natural progression of the disease. Given the above, the Board finds sufficient evidence to suggest aggravation in service, and will resolve reasonable doubt in favor of the Veteran. CONTINUED ON NEXT PAGE Accordingly, service connection for both the right and left ear is granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel