Citation Nr: 18156253 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-12 740 DATE: December 7, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. A rating decision in June 2012 denied service connection for bilateral hearing loss; although the Veteran filed a timely notice of disagreement, he did not file a VA Form 9 substantive appeal. 2. Evidence received since the June 2012 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 3. Bilateral hearing loss was not incurred during active service and is not etiologically related to an in-service injury, event, or disease, to include noise exposure. CONCLUSIONS OF LAW 1. The June 2012 rating decision is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156. 2. Evidence received since the June 2012 rating decision denying service connection for bilateral hearing loss is new and material and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss Since the June 2012 rating decision that denied service connection for bilateral hearing loss, new medical evidence has been associated with the claims file. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Specifically, an August 2014 VA audiogram has been added to the claims file. That records relates to previously unestablished facts. Further, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. For these reasons, reopening of the previously denied claim of service connection for bilateral hearing loss is warranted. Entitlement to service connection for bilateral hearing loss is addressed on the merits below. The Veteran is not prejudiced by this action as the RO has also reopened and adjudicated the claim on the underlying merits in the February 2017 statement of the case. Hickson v. Shinseki, 23 Vet. App. 394 (2010). 2. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for chronic diseases, to include hearing loss, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). The Veteran seeks service connection for bilateral hearing loss. For the reasons that follow, the Board finds that service connection is not warranted. Impaired hearing is considered a disability for VA purposes 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. The result of an audiogram administered by a state-licensed audiologist is the only type of evidence deemed competent to show a hearing impairment for VA purposes. See 38 C.F.R. § 4.85. The Veteran’s November 1966 pre-induction audiogram shows no hearing loss disability that meets the criteria of § 3.385. The service treatment records were negative for complaints of or treatment for hearing-related problems. On his report of medical history completed in June 1968, prior to service separation, the Veteran denied any history of hearing loss. The June 1968 service separation audiogram did not demonstrate hearing loss by VA standards. There are no post-service treatment records demonstrating a bilateral hearing loss disability per § 3.385 within a year of service discharge. The Veteran was afforded a VA examination in June 2012. Pure tone threshold (in decibels) and speech discrimination scores were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 50 65 LEFT 25 20 25 35 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 84 percent in the left ear. The examiner noted sensorineural hearing loss in both ears. An August 2014 VA audiogram also showed current hearing loss in both ears by VA standards. Based on the foregoing, the Veteran meets the requirements for bilateral hearing loss under 38 C.F.R. § 3.385 and therefore has a current bilateral hearing disability as required by 38 C.F.R. § 3.303. Therefore, the first element of service connection is established. The Veteran states that during service he was exposed to noise from ballistic missile rockets and rocket motors. The Veteran’s military occupational specialty was an electrical mechanical repairman. Thus, an in-service noise injury is demonstrated, and the second element of service connection is also established. Regarding the final element of service connection, the only competent medical opinion of record is that of the June 2012 VA examiner, who noted the Veteran had a significant history of occupational noise exposure from work as a tool and die maker at General Motors without use of hearing protection. She stated that the Veteran’s enlistment and separation audiograms did not show any shift in hearing thresholds, and that his hearing was well within normal limits at separation from service. Thus, she found it not at least as likely as not that the Veteran’s current hearing loss was caused by or the result of an event in service. There is no competent medical opinion to the contrary. In this regard, the Board acknowledges the Veteran’s statements asserting that his hearing loss is related to military noise exposure from his active service. However, the Veteran is not competent to specify that a current hearing loss disability is related to any noise exposure during his active service, as he does not possess the requisite medical knowledge to make such a determination. This is particularly so in this case where the Veteran reported occupational noise exposure after service without use of hearing protection. Finally, regarding service connection on a presumptive basis, the post-service medical evidence of record does not demonstrate findings of hearing loss for VA purposes until 2012, which is more than 40 years after the Veteran’s discharge from active duty. Therefore, both presumptive service connection and service connection based on a continuity of hearing loss symptomatology since service are precluded. 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claim for entitlement to service connection for bilateral hearing loss, and the benefit sought on appeal is accordingly denied. See 38 U.S.C. § 5107 (b). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel