Citation Nr: 1808833	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-11 898	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss and, if so, whether the clam should be allowed.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Fussell, Counsel





INTRODUCTION

The Veteran had active service from June 1971 to June 1975.  

This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which found that because recent VA audiometric testing had not found the existence of a hearing loss in either ear by VA standards, the application to reopen a claim for service connection for bilateral hearing loss, having been last denied by the RO in December 1985, was not reopened.  

An October 2013 rating decision granted service connection for diabetes mellitus, type II, based on inservice herbicide exposure in Thailand.  

A June 2014 rating decision granted service connection for diabetic peripheral neuropathy of the (a) sciatic nerve of the left lower extremity, (b) the femoral nerve of the left lower extremity, (c) the sciatic nerve of the right lower extremity, and (d) the femoral nerve of the left lower extremity.  It also granted service connection for erectile dysfunction, all as secondary to service-connected diabetes, and also granted special monthly compensation (SMC) for loss of use (LOU) of a creative organ.  

A December 2014 rating decision continued the disability ratings assigned for the Veteran's service-connected disorders and also denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating).  

A November 2015 rating decision, in pertinent part, confirmed and continued 20 percent ratings for (a) diabetes mellitus, (b) diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity, and (c) diabetic peripheral neuropathy of the femoral nerve of the left lower extremity.  It also increased the 10 percent ratings for diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity and diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity to 20 percent.  It also denied service connection for a major depressive disorder and for anxiety as well as diabetic peripheral neuropathy of the right upper extremity and the left upper extremity.  It also continued the denial of entitlement to a TDIU rating.  

The Veteran was notified of the November 2015 rating decision by a letter later than month.  In May 2016 he filed VA Form 21-0958, Notice of Disagreement (NOD) to the November 2015 rating denial of entitlement to a TDIU rating, which the RO acknowledged in a letter the next month.  

A March 2017 rating decision denied service connection for cancer of the prostate and cancer of the bladder.  In May 2017 he filed VA Form 21-0958, Notice of Disagreement (NOD) to the denials of service connection for cancer of the prostate and cancer of the bladder, which the RO acknowledged in a letter later that month.  

By letter in September 2017 he was notified of a hearing scheduled in October 2017 before a Decision Review Officer (DRO) as to the issues of a TDIU rating and service connection for prostate and bladder cancer.  

Because the RO had acknowledged receipt of the foregoing NODs, the situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized.  As VBMS reflects that the NOD has been recognized and that additional action is pending, the holding in Manlincon, Id., is not applicable as to this claim.  However, as yet, it is not clear from the information in Veteran's Benefits Management System (VBMS) whether the DRO hearing was, in fact, conducted, or perhaps postponed.  In either event, as yet, the RO has still not issued a Statement of the Case (SOC) as to these matters and, so, these matters are referred to the RO for appropriate consideration.   

This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file.  Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records.


FINDINGS OF FACT

1.  The Veteran was notified in December 1985 of a rating decision that month which denied service connection for bilateral hearing loss but he did not appeal that decision and it is final.  

2.  The evidence pertaining to the Veteran's claims for service connection for bilateral hearing loss, submitted subsequent to the December 1985 rating decision does not constitutes new and material evidence sufficient to reopen the claim because a hearing loss is not shown in either ear by VA standards. 


CONCLUSIONS OF LAW

1.  The December 1985 rating decision that denied service connection for bilateral hearing loss is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017).  

2.  New and material evidence has not been submitted to reopen the claim for service connection for bilateral hearing loss.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 3.385 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As to the claim for service connection for bilateral hearing loss, by letter in May 2012 the RO satisfied its duty under the Veterans Claims Assistance Act of 2000 (VCAA) to notify the Veteran under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  Specifically, the Veteran Affairs was notified of the information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and that which he was to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  They also notified him of the way initial disability ratings and effective dates are established.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Previously, in providing VCAA required notice information as to the reason or reasons for a prior denial, i.e., which element or elements were was not previously substantiated.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  However, VAOPGCPREC 6-2014 determined that the VCAA only requires claim-specific notice and not case-specific notice, i.e., there is no requirement to provide notice of the reason or reasons for the prior denial.  

The record in this case consists of the Veteran's service treatment and personnel records, as well as private, VA outpatient treatment (VAOPT).  A November 2015 response from the Social Security Administration (SSA) is to the effect that the agency had no medical records pertaining to the Veteran.  

Generally, under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented.  38 C.F.R. § 3.159(c)(4)(iii).  Here, the Veteran was afforded a VA examination in this case addressing the etiology of any hearing loss.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).  The Board may assume the competence of VA examiners and the adequacy of a VA medical opinion unless either is challenged.  Here, the adequacy of the examination and medical opinion is not challenged.  See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010).  Moreover, the VA examination report is accepted as adequate because it provide evidentiary information that speaks directly to the Veteran's subjective complaints, the objective findings found on evaluation, and a medical opinion.  38 C.F.R. § 3.326.

As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.

Law and Regulations

To establish service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in- service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for a disease first 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 rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including a sensorineural hearing loss, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307).  If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability.  38 U.S.C. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (a) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) which requires (i) a sufficient combination of manifestations for disease identification, and (ii) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic" and (iii) subsequent manifestations of the same chronic disease, or (b) if chronicity in service in not established, as above, by evidence of continuity of symptomatology which requires that (i) a condition was 'noted' during service, and (ii) evidence of postservice continuity of the same symptomatology, and (iii) medical or lay evidence of a nexus between the present disability and the postservice symptomatology."  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

38 C.F.R. § 3.385 provides that for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent.  59 Federal Register November 25, 1994 (effective December 27, 1994).

The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed.  See generally 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2).  However, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  See 38 C.F.R. § 3.159(a)(1).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

Any competent lay evidence must be weighed to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009).  VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("[E]vidence of a prolonged period without medical complaint can be considered") and Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (more probative weight to VA opinions which relied, inter alia, on a record showing disability symptoms did not begin until decades after service).

Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both.  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements opposing consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

Only after new and material evidence is submitted and a previously denied claim is reopened, upon adjudication of a claim on a de novo basis, reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001).  

Reopening

The Board, in the first instance, must rule on the matter of reopening because reopening is jurisdictional.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  In the first step in reopening, there is a three-part analysis.  First, since the last disallowance on any basis, i.e., on the merits or denying reopening (Evans v. Brown, 9 Vet. App. 273, 285 (1996)), there must be new and material evidence (i.e., noncumulative evidence, not redundant, and not previously submitted) which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  VA evidence which was constructively on file and is now actually on file, may be new and material evidence if it is not cumulative and is relevant.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) and Smith (Russell) v. West, 12 Vet. App. 312, 314-15 (1999).  If no new evidence is submitted, no analysis of materiality is required.  Smith (Russell) v. West, 12 Vet. App. 312, 315 (1999).  

Second, the new evidence need be probative only as to each element that was a specified basis for the last denial without having to establish all elements needed for allowance.  Third, it must be material. 

Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  Under 38 C.F.R. § 3.156(c) the receipt of additional relevant service records will be cause to reconsider a prior rating decision denying a service connection claim.  

In the reopening context, the doctrine of the favorable resolution of doubt is not applicable unless the threshold burden of submitting new and material evidence to reopen has been met.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).  

Background

The Veteran was notified in December 1985 of a rating decision that month which denied service connection for bilateral hearing loss.  The Veteran did not appeal that decision.  No additionally relevant service records have been received since that decision and no relevant VA records were created or received within one year of that decision.  Thus, that rating decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017).  

Evidence Previously On File

The evidence of record at the time of the December 1985 rating decision included the Veteran's STRS.  

Audiometric testing on examination for entrance into service in May 1971 revealed the Veteran's hearing acuity, in decibels, at certain frequencies was as shown below: 

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
35
35
15
Not Tested
15
Left Ear
25
15
15
Not Tested
25

The Veteran was given a hearing profile of "H2." 

An August 1971 Physical Profile Serial Report states that the Veteran was qualified for general military service even though he had a physical profile of "H2" for "defected" hearing but he had no major duty restrictions.  

Audiometric testing on examination for separation from service in November 1974 revealed the Veteran's hearing acuity, in decibels, at certain frequencies was as shown below: 

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
10
0
0
0
20
Left Ear
5
0
00
0
0

The Veteran was given a hearing profile of "H2."  In an adjunct medical history questionnaire the Veteran reported not having or having had a hearing loss.  

The unappealed December 1985 rating decision which denied service connection for bilateral hearing loss found that the Veteran had a hearing loss which preexisted active service and which underwent no increase, and thus no aggravation, during service (inasmuch as all threshold levels were better at service discharge than at service entrance).  

Additional Evidence

Since the 1985 rating decision additional service personnel records were requested in conjunction with a claim for service connection for diabetes based on inservice herbicide exposure while the Veteran was stationed in Thailand, which was subsequently granted.  However, these records contain no information relative to the Veteran's hearing acuity at any time.  

The Veteran applied to reopen the claim in 1998 but submitting a duplicate copy of the August 1971 Physical Profile, along with VA Form 21-526, Application for Compensation or Pension.  

In November 1998 the Veteran was informed of the prior rating decision denying service connection for hearing loss and was informed that he had to submit new and material evidence to reopen that claim.  

However, no such evidence was submitted within one year of that letter.  

In 2008 the Veteran submitted a statement reporting that he had high blood pressure, diabetes, and gout.  

An April 12, 2012, VA Form 21-0820, Report of Contact indicates that the Veteran desired to reopen his claim for service connection for bilateral hearing loss.  

Received on May 9, 2012 was a written statement from the Veteran formally applying to reopen his claim for service connection for hearing loss.  

Received in conjunction with the application to reopen the claim for service connection for hearing loss is a report of a September 1998 private audiology evaluation at the Cleveland Heights Medical Center.  

Audiometric testing revealed the Veteran's hearing acuity, in decibels, at certain frequencies was as shown below: 

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
20
10
10
10
35
Left Ear
25
20
20
15
35

The Veteran's speech reception thresholds were 10 decibels in the right ear and 15 in the left ear, and his discrimination ability was 96 percent in the right ear and 100 percent in the left ear.  The report indicates that he had a mild sensorineural hearing loss in the right ear at 4,000 Hertz but was otherwise within normal limits and with normal speech discrimination.  His hearing was reported to be within normal limits in the left ear, with normal speech discrimination.  

Based on this submission the RO requested a VA audiology evaluation and conceded inservice excessive noise exposure in light of the Veteran's military occupational specialty as a security specialist.  

A May 2012 private audiology evaluation by Kaiser Permanente revealed the Veteran's hearing acuity, in decibels, at certain frequencies was as shown below:  

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
25
20
20
Not Tested
30
Left Ear
25
25
30
Not Tested
25

The Veteran's speech reception thresholds were 15 decibels in the right ear and 15 in the left ear, and his discrimination ability was 96 percent in the right ear and 100 percent in the left ear.  It was reported that he had had a slight decrease in hearing acuity in each ear since his testing in September 1998.  

In a May 2012 statement the Veteran's son reported that his father had always been hard of hearing, particularly with respect to understanding human speech in conversations.  The Veteran's wife also submitted a statement that she had met him over 30 years ago, after he had had military service, and had realized that he had a hearing problem, which had worsened over the years.  In a statement that month the Veteran reported having been exposed to acoustic trauma at airbases in Thailand.  

Also in May 2012 the Veteran submitted a copy of an article relating a mortar bombing of a military base in Thailand, with a handwritten notation that it occurred in the time period of 1972 to 1973. 

On VA audiology evaluation in June 2012, the Veteran's claim file was reviewed, and audiometric testing revealed the Veteran's hearing acuity, in decibels, at certain frequencies was as shown below: 

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
10
10
15
10
25
Left Ear
5
0
15
10
20

The Veteran's speech discrimination ability was 96 percent in the right ear and 94 percent in the left ear.  The use of both puretone and speech discrimination testing were deemed to be appropriate.  It was reported that he had normal hearing acuity in the left ear and a sensorineural hearing loss in the right ear in the range of 6,000 Hertz or higher.  

It was opined that the Veteran's hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service.  The rationale was that a comparison of hearing tests administered on 05/18/1971 on his entrance into active service and on 11/05/1974 on his release from active service revealed no decrease in hearing in either ear.  The current audiological assessment revealed normal hearing for a 60-year male.  It was also reported that a hearing loss had existed prior to service but was not aggravated, in either ear, beyond normal progression during service because the separation audiometric testing in 1974 revealed no decrease in hearing in either ear when compared to testing at service entrance in 1971.  

VA outpatient treatment (VAOPT) records show that on August 22, 2016 it was noted that the Veteran was afforded an additional audiology evaluation and it was reported that the results were similar to the June 2012 audiology examination.  

Analysis

The Board is cognizant of the holding in Falzone v. Brown, 8 Vet. App. 398, 404 (1995) in which it was held that in rendering assistance in obtaining a VA examination before reopening VA "performed a 'de facto reopening'" of the claim.  The Court stated that where there was an application to reopen a claim, because an examination was conducted to determine the nature and severity of the claimed condition, the examination would not have been necessary unless the claim was to be adjudicated on the merits.  Falzone, at 404.  Here, the additional VA examination was arranged because of the indications upon private audiometric testing that the Veteran had a hearing loss, even though the actual results of the private audiometric testing did not establish, or even suggest, that the Veteran had a hearing loss by VA standards.  Thus, the holding in Falzone, Id., is not applicable.  

However, in this case it must be noted that while the audiometric testing at service entrance reportedly revealed a hearing loss, for which the Veteran was given a hearing profile during service, the fact remains that his hearing acuity was normal at service discharge.  

Unlike the denial in December 1985 there is now a requirement that for any grant of service connection for hearing loss, that hearing loss must be of such severity as to meet a minimum threshold, as described above in 38 C.F.R. § 3.385, which did not become effective until December 27, 1994, after the December 1985 prior rating decision that denied service connection for hearing loss.  In other words, 38 C.F.R. § 3.385, which effective in 1994, requires that there be a minimum loss of hearing acuity, as measured by appropriate audiometric testing, in order for any hearing loss to be considered a disability for the purpose of receipt of VA disability compensation.  As applied here, while the service entrance audiometric testing in 1971 revealed a hearing loss, at only 500 Hertz, in the right ear, the Veteran's hearing acuity was normal in the left ear.  Moreover, the separation audiometric testing revealed normal hearing acuity, by VA standards at 38 C.F.R. § 3.385, in each ear.  

Likewise, the private audiometric testing in 1998 and again in 2012, as well as the VA audiology examination in 2012, all reveal that the Veteran's hearing acuity is within normal limits in each ear.  Thus, that he does not have a hearing loss by VA standards in either ear.  

Accordingly, the Board can only conclude that the evidence does not establish a reasonable possibility of substantiating the claim that the Veteran has a current bilateral hearing loss disability.  

Service connection cannot be granted "[i]n the absence of proof of a present disability."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Although McClain is often cited for the proposition that evidence predating the filing of claim cannot be used to establish a current disability for the purpose of establishing service connection, in Romanowsky v. Shinseki, the Court clarified that this was not so.  26 Vet. App. 289, 293-94 (2013).  Specifically, it was held "that when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency."  Id. at 294.  In a footnote, at page 294, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance."  

Here, the only evidence even remotely suggestive of a hearing loss pertains to only a putative hearing loss in the right ear at service entrance, in 1971 which is too far remote in time to suggest, much less establish, that the Veteran has had a hearing loss at any time beginning with the filing of his April 2012 application to reopen the claim for service connection for bilateral hearing loss.  As the RO has done previously, the Board concedes that the Veteran was exposed to acoustic trauma during service.  However, the statements of the Veteran and his family members as to his diminished hearing acuity simply cannot take the place of the objective measurement of his hearing acuity by audiometric testing which is required by VA regulation, i.e., 38 C.F.R. § 3.385, to establish that he actually had a hearing loss.  

In simpler terms, even taken together, the old and the new evidence do not establish a reasonable possibility of allowance of the claim.  Thus, the additional evidence is not new and material for the purpose of reopening the claim and, accordingly, the claim for service connection for bilateral hearing loss is not reopened.  






ORDER

The application to reopen the claim for service connection for bilateral hearing loss is denied.  




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs