Citation Nr: 18123731 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-16 888 DATE: August 2, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, and service connection for bilateral hearing loss is granted. Entitlement to an effective date earlier than December 16, 2011, for the award of service connection for a right knee gouty arthritis is denied. FINDINGS OF FACT 1. By an August 1982 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for bilateral 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 decision within one year nor was new and material evidence received within a year. 3. Additional evidence received since the RO’s August 1982 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s military personnel records show that his appointment in service was related to the infantry division; thus, it is reasonable to infer that he was exposed to significant in-service acoustic trauma. 5. The Veteran has reported consistently that he incurred his current bilateral hearing loss as a result of exposure to significant in-service acoustic trauma while serving in artillery and infantry. 6. Resolving reasonable doubt in the Veteran’s favor, the record evidence shows that his current bilateral hearing loss is related to active service. 7. The Veteran initially submitted a claim for service connection for a right knee disorder in 1982. 8. In an unappealed August 1982 rating decision, the RO denied service connection for a right knee disorder. 9. In December 16, 2011, the Veteran submitted a new claim for service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The RO’s August 1982 rating decision to deny service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 5107, 5108 (West 2012); 38 C.F.R. §§ 3.102, 3.156 (2017). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for an effective date earlier than December 16, 2011 for the award of service connection for right knee gouty arthritis have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to September 1971. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, and service connection for bilateral hearing loss In the present case, the RO, by a decision entered in August 1982, denied the Veteran’s claim for service connection for bilateral hearing loss on the grounds that a hearing loss disability did not exist, for VA purposes. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017). As a result, the RO’s decision became final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the RO’s August 1982 rating decision includes several VA and private treatment records. Specifically, a September 2013 private opinion noted that the Veteran’s auditory thresholds at 4000 Hz in the left ear and 3000 and 4000 Hz in the right ear are 40 decibels or greater, thereby his ears meet the auditory threshold required for VA purposes. Also, an October 2012 VA hearing examination noted his right ear was at 20 decibels at 1000 Hz, 25 decibels at 2000 Hz, 55 decibels at 3000 Hz and 85 decibels at 4000 Hz. His left ear was at 15 decibels at 1000 Hz; 20 decibels at 2000 Hz; 20 decibels at 3000 Hz; and 45 decibels at 4000 Hz. He had right ear discrimination at 96 percent, and left ear discrimination at 92 percent. As the RO denied the Veteran’s claim, noting no diagnosis of hearing loss, for VA rating purposes, in service or post service, this evidence supports the contention that he has bilateral hearing loss that may be related to service. This evidence is not cumulative or redundant of the evidence of record at the time of the last decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened and the matter must now be addressed on a de novo basis. The Veteran contends that in-service, acoustic trauma (firing of 90-pound, highly explosive weapons) caused his bilateral hearing loss. See June 2018 hearing transcript. Although a January 2013 VA examiner opined to the contrary, the Board finds the more recent evidence of the Veteran’s September 2013 private opinion, the article submitted June 2018 entitled “Noise-Induced Hearing Loss” and the Veteran’s June 2018 testimony to hold greater probative value. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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 Veteran was afforded a VA hearing examination in October 2012. Pure tone thresholds at the time of this examination were 20, 20, 25, 55 and 85 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, on the right side; and 15, 15, 20, 20, and 45 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, on the left side. Speech discrimination was 96 percent for the right ear, and 92 percent for the left ear. A January 2013 VA examiner opined that, given normal hearing by VA standards at time of separation (1971), and no evidence of a significant threshold shift in either ear at any frequency, the Veteran's hearing loss, if any, is less than likely caused by or aggravated by his exposure to military noise. The examiner indicated that current science indicates that understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. In September 2013, the Veteran’s private physician, Dr. K.W., indicated that the Veteran has bilateral moderate to severe high frequency sensorineural hearing. On examination, pure tone thresholds were 15, 20, 20, 60 and 85 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, on the right side; and 15, 20, 15, 20 and 50 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, on the left side. Dr. K.W. noted that the Veteran reported that he was in the Army in the 3rd infantry division 1/10 artillery from 1969 to 1971. During that time, he served in Germany and was exposed to a significant amount of noise; after service he worked in maintenance for the United States Postal Service for 28 years. Dr. K.W. opined that the Veteran’s hearing loss is as likely as not caused by his time in the Army, given the high amount of noise exposure during that time. In this case, medical evidence shows a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. There is also evidence of an in-service injury, as VA has conceded to acoustic trauma. Moreover, the private opinion also suggests a link between this hearing loss and military service. While there is conflicting evidence regarding whether the Veteran’s bilateral hearing loss was incurred during his military service, the Board finds that the evidence is in equipoise and will resolve reasonable doubt in the Veteran’s favor to find that bilateral hearing loss was caused by acoustic trauma in service. Based on the Veteran’s competent and credible reports regarding his in-service noise exposure and current bilateral hearing loss, the Board resolves all doubt in his favor and finds that entitlement to service connection for bilateral hearing loss is warranted. 2. Entitlement to an effective date earlier than December 16, 2011 for the award of service connection for right knee gouty arthritis Unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. §§ 7104, 7105. If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1100, 20.1103. With exceptions, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400 (q), (r). The Veteran contends that his claim for service connection for a right knee condition should be granted back to 1982, the year he first filed for service connection for a right knee condition; as his service treatment records (STRs) show treatment in service for his right knee issue. See June 2018 Hearing Transcript. He maintains that he filed in 1982, and after the claim was denied, his representative did not inform him that he could file a notice of disagreement and appeal the claim. Here, the Veteran filed a claim of entitlement to service connection for a right knee condition in March 1982. An August 1982 rating decision denied his claim. The Veteran did not file a notice of disagreement and no new evidence was submitted within one year of the decision. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the August 1982 denial became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2017). The RO granted service connection for a right knee condition, and established an effective date of December 16, 2011, as this was the date of receipt of the Veteran’s petition to reopen his previously-denied claim of entitlement to service connection for a right knee disability. The effective date is the later of the date of claim or the date the disability rose. 38 C.F.R. § 3.816(c)(2). After the Veteran’s claim for service connection for a right knee condition was denied in August 1982, there is no indication of an intent to claim service connection for a right knee condition (see Ellington v. Nicholson, 22 Vet. App. 141 (2007) (holding that medical information in and of itself cannot be an informal claim for service connection); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder)). Although the Veteran contends that his representative did not inform him of his ability to file an appeal, there is no indication in the file that his notification letter of his appellate rights was returned undelivered. Indeed, the effective date of the Veteran’s grant of entitlement to service connection for a right knee disability is December 16, 2011. As discussed above, there is no legal basis for assignment of an earlier effective date for service connection for a right knee condition; therefore, an earlier date is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel