Citation Nr: 1807452 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-26 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran and B.H. ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1968, to include service as an infantryman in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In November 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. FINDINGS OF FACT 1. In a March 2007 rating decision, the RO declined to reopen a claim for service connection for bilateral hearing loss; the Veteran did not appeal the decision and new and material evidence was not submitted within the one year appeal period. 2. Evidence associated with the record since the March 2007 decision relates to unestablished facts and substantiates the claim of entitlement to service connection for bilateral hearing loss. 3. Resolving any doubt in the Veteran's favor, the Veteran's bilateral hearing loss had onset in service due to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The March 2007 rating decision declining to reopen a claim for service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2006). 2. New and material evidence has been received and the claim seeking service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for establishing service connection for bilateral hearing loss are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. The Board is required to address the issue of new and material evidence in the first instance. Any decision that the AOJ may have made with regard to a new and material claim is not binding on the Board. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable probability of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1993). The Veteran's claim for service connection for bilateral hearing loss was originally denied in an August 2002 rating decision which the Veteran did not appeal. He filed a claim to reopen in November 2006 which was denied in March 2007. The Veteran did not timely appeal the March 2007 rating decision, nor did he submit new and material evidence within one year of that decision; therefore, it is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2006). The RO denied service connection for bilateral hearing loss because the Veteran's service treatment records (STRs) did not show evidence of hearing loss and the Veteran worked in a brewery for many years after service where he was exposed to occupational noise. Evidence received since the March 2007 rating decision includes lay statements from the Veteran and his wife, private treatment records and hearing testimony. Private treatment records indicate the presence of hearing loss as early as August 1971, prior to the Veteran's employment at the brewery. In addition, there is a positive private medical opinion indicating the Veteran's hearing loss likely had onset as a result of exposure to excessive noise while in the military and worsened in his civilian occupation. At his hearing before the Board, the Veteran testified that he had hearing loss in 1971 and it was worse than he realized prior to needing hearing aids and reading lips. This evidence is "new," as it was not previously submitted to agency decision makers. The evidence is also "material" as the evidence relates to the onset of the Veteran's hearing loss and a nexus to his active duty service. The evidence relates to unestablished facts necessary to substantiate the claim. Accordingly, the claim for service connection for bilateral hearing loss is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection The Veteran contends that his bilateral hearing loss was incurred as a result of his exposure to loud noise from artillery and gunfire during his active military service. For the reasons that follow, the Board finds that the Veteran's bilateral hearing loss is related to service and concludes that service connection is warranted. 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; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (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). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). For VA purposes, impaired hearing is considered 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 those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Here, VA examination reports and treatment records demonstrate hearing loss for VA purposes. In addition, the Veteran served as part of the infantry and exposure to excessive noise during service, considered an in-service injury, is conceded. See DD-214 (indicating the Veteran's specialty as an anti-tank assault man). Although STRs do not indicate hearing loss, the record does indicate severe hearing difficulty in both ears as early as 1998. The Veteran underwent periodic hearing tests at his civilian occupation at a brewing company. The February 1998 document indicated the Veteran's "baseline status" recorded in 1971, prior to starting employment at the brewery. On August 26, 1971, a mild hearing difficult was noted in the speech frequencies in the right ear and a moderate hearing difficulty was noted in the high frequencies bilaterally at that time. It appears that the Veteran first began to become actively aware of losing his hearing around the time he initially filed a claim for service connection in March 2002. At that time, an examination was not performed. Audiograms in 2000, 2001 and 2005 that are now part of the record show mild to severe sensorineural hearing loss worse in the higher frequencies. In a June 2005 letter, a private doctor reviewed the Veteran's medical records in order to provide an opinion regarding the Veteran's hearing loss in the context of a worker's compensation claim against the brewery. The provider noted that prior to working at the brewery in August 1971 loss of hearing was already demonstrated. At a VA examination in February 2007, the Veteran reported he noticed his hearing loss about 20 years prior and that others had complained of his difficulty understanding in a lot of situations, but he did not notice it as much as other people. In December 2011, the Veteran submitted the opinion of a private audiologist. He reported unprotected noise exposure while serving as a gunner and loader on howitzers. He indicated that after service he participated in the hearing conservation program where he worked at a brewery. The audiologist opined that the Veteran's hearing loss was more likely than not related to his military noise exposure and may have worsened as a civilian. She explained that according to the American College of Occupational and Environmental Medicine, noise exposure without hearing protection can cause and/or contribute to noise-induced hearing loss and acoustic trauma in individuals. In a January 2014 statement in support of claim, the Veteran's wife referenced the pre-employment test done in 1971 showing hearing loss at that time. She stated the Veteran was young (24) and he did not know he had hearing loss. She indicated he had been married to her husband for 45 years and lived "the loss of hearing with him every day." At a May 2014 VA examination, the Veteran stated he first perceived hearing loss in the early 2000s. He stated he was deployed to Vietnam for 11 months and was exposed to excessive noise in the form of artillery rounds. He stated his only hearing protection was cotton during pre-deployment training and no hearing protection was provided in Vietnam. The examiner noted that noise exposure in the military did not consistently show acoustic damage and many people came back from active combat with normal hearing. He therefore concluded that if there were no documents supporting the damage than it was less likely that it occurred. It does not appear the VA examiner had the August 1971 hearing test results available for review. At his November 2016 hearing before the Board, the Veteran explained that he was an infantryman in the Marine Corps and fired artillery rounds at Camp Pendleton prior to deployment to Vietnam. In Vietnam, he was an infantryman attached to an artillery unit and when he came back stateside he finished out his service doing work as a barber and mailman for the battalion. He indicated that his hearing deteriorated and other people noticed he was hard of hearing before he did. Upon review of the evidence as a whole, although the Veteran indicated at VA examinations that he did not perceive the effects of hearing loss until many years after separation from service, medical evidence shows hearing loss was already present to a moderate degree in the high frequencies when the Veteran was 24 years old and prior to when he began work at the brewing company in 1971, not long after separation from service. In addition, the record contains a positive nexus opinion that the Veteran's hearing loss is likely due to excessive noise exposure in Vietnam and that it worsened thereafter on account of his civilian occupation. The Veteran currently has hearing loss that is recognized as a disability for VA purposes, noise exposure is conceded as an in-service injury and there is evidence supporting a nexus to service. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for establishing entitlement to service connection for bilateral hearing loss are met and the claim is granted. 38 C.F.R. § 3.303(d). ORDER The claim for entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs