Citation Nr: 18156774 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-62 418 DATE: December 11, 2018 ORDER The previously denied claim for service connection for bilateral hearing loss is reopened and granted. FINDINGS OF FACT 1. By a decision entered in June 2000, the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California denied the Veteran’s claim for service connection for hearing loss; he was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s June 2000 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence received since the time of the RO’s June 2000 decision, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for hearing loss and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s bilateral hearing loss is related to his military service. CONCLUSIONS OF LAW 1. The June 2000 rating decision denying service connection for hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1979 to June 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the RO in San Diego, California. The Veteran has withdrawn his request for a Board videoconference hearing. See January 2017 correspondence. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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, to include by triggering the Secretary’s duty to assist. Id. at 118. The RO previously considered and denied a claim for hearing loss in a June 2000 rating decision. In that decision, the RO found that the Veteran did not have a hearing loss disability for VA purposes. His hearing was normal at time of discharge and during the August 1999 VA examination. See June 2000 rating decision. The Veteran was notified of that decision and of his appellate rights; however, he did not file an appeal. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the June 2000 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The evidence associated with the claims file since the June 2000 rating decision includes VA treatment records, the report of a new VA examination, and a medical opinion letter from his primary care physician. That evidence was not previously considered by the RO, relates to unestablished facts necessary to substantiate the claim, and could reasonably substantiate the claim. Thus, the Board finds that this evidence is both new and material. The claim for service connection for hearing loss is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system (including sensorineural hearing loss) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (including sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose 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 is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the applicable laws and regulations, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. Initially, the Veteran has a current diagnosis of bilateral hearing loss which meets the requirements of 38 C.F.R. § 3.385. Following a September 2015 audiological examination at the San Diego VAMC, the Veteran was diagnosed with bilateral sensorineural hearing loss, including Maryland CNC test results of 92 percent bilaterally. Similarly, an August 2016 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss following puretone threshold testing. See August 2016 VA examination report. Therefore, a current diagnosis is not at issue. Furthermore, the Veteran was an aircraft maintenance technician throughout his 20 years of naval service and hazardous noise exposure is conceded. See October 2016 Statement of the Case. Thus, the remaining question is whether there is a relationship between his current hearing loss and military service, to include in-service noise exposure. The Veteran has reported significant noise exposure in service, including from jet aircraft and generators. The Veteran is competent to report noise exposure, and his reports are consistent with the circumstances of his service. He has also denied any ear trauma or noise exposure outside of military service. At separation, the Veteran’s ears and drums were normal, and his separation audiogram was normal for VA purposes. However, on his March 1999 retirement medical history questionnaire, he indicated a history of hearing loss. In addition, his March 1999 service treatment records indicate that he failed several audiograms. His in-service audiograms do show significant threshold shifts during service, reflecting progressive hearing loss. In a December 2015 medical opinion letter, the Veteran’s treating physician at MCAS Miramar, P.H. (initials used to protect privacy), opined that his bilateral sensorineural hearing loss is more likely than not caused by military noise exposure. P.H. discussed the Veteran’s exposure to constant noise while working as an aviation machinist’s mate for 20 years, his lack of any family history of hearing impairment, and his consistent significant threshold shifts during service. P.H. also explained that sensorineural hearing loss is asymmetrically distributed toward the high-frequency region and can be acquired through exposure to loud environments. See P.H.’s December 2015 medical opinion letter. By contrast, the August 2016 VA examiner found no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz. According to the August 2016 VA examiner, the Veteran already had a mild clinical hearing loss at enlistment and his hearing thresholds did not significantly worsen during service. She explained that if military noise caused his hearing loss, the damage would have manifested immediately. She also stated that the audiometric configuration is not typical of noise exposure. See August 2016 VA examination report. The Board finds the VA examiner’s medical opinion has limited probative value, as she did not explain how the audiometric configuration is not typical of noise exposure, nor did she explain why the threshold shifts in service are not considered significant. The Veteran’s in-service audiograms document threshold shifts in the range of 15-20 decibels at 3000-4000 Hertz, which was noted to be significant by the Navy audiologist. Furthermore, the examiner’s consideration of a “mild clinical hearing loss” at enlistment is misplaced. See McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (holding that hearing loss that does not meet the requirements of 3.385 is not a “defect” because it is not considered a disability for VA purposes). Accordingly, resolving all reasonable doubt in the favor of the Veteran, the Board concludes that service connection for bilateral hearing loss is warranted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel