Citation Nr: 19110577 Decision Date: 02/08/19 Archive Date: 02/08/19 DOCKET NO. 18-31 058 DATE: February 8, 2019 ORDER New and material evidence having been received, the appeal to reopen service connection for right ear hearing loss is granted. Service connection for right ear hearing loss is granted. REMANDED An increased (compensable) disability rating for bilateral ear hearing loss is remanded. FINDINGS OF FACT 1. An October 2012 rating decision denied service connection for right ear hearing loss, finding that right ear hearing loss preexisted service and was not aggravated by service. 2. The Veteran did not a file a notice of disagreement (NOD) as to service connection for right hearing loss following the October 2012 rating decision. 3. New evidence received since the October 2012 rating decision relates to the unestablished fact that right ear hearing loss was aggravated by service. 4. Right ear hearing loss preexisted service as it was noted upon service entrance. 5. The Veteran had exposure to acoustic trauma in service. 6. Preexisting right ear hearing loss was worsened in severity during service. CONCLUSIONS OF LAW 1. The October 2012 rating decision denying service connection for right ear hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the October 2012 rating decision is new and material to reopen service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5103(a), 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from January 1964 to January 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision. Reopening Service Connection for Right Ear Hearing Loss Generally, when a claim is disallowed, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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 new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 received 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. In an October 2012 rating decision, the Regional Office (RO) denied service connection for a right ear hearing loss on the basis that the disorder preexisted service and was not aggravated by service. The Veteran did not appeal the October 2012 denial of service connection for right ear hearing loss and no new material evidence was received within one year of the rating decision; thus, the October 2012 rating decision denying service connection for right ear hearing loss became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the October 2012 rating decision, a May 2017 VA examination report reflects the VA examiner indicated that the service separation audiometric examination results were invalid because the audiometric examination showed that hearing loss improved prior to separation from service, which was unlikely. See May 2017 VA examination report. The Veteran has also submitted various lay statements indicating that right ear hearing loss worsened during service. Such evidence could reasonably substantiate a finding of worsening of right ear hearing loss during service. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection right ear hearing loss. 38 C.F.R. § 3.156(a). Service Connection for Right Ear Hearing Loss A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease both existed prior to service and was not aggravated by such service. 38 U.S.C. § 1132. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For purposes of this claim, the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 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 Veteran contends that right ear hearing loss, which preexisted service, worsened due to in-service exposure to acoustic trauma (loud noise) from machinery and blasting. Specifically, the Veteran asserted that the preexisting hearing loss worsened as a result of exposure to loud noise from backhoes, compressors, dozers, generators, graders, jackhammers, rock drills, scrapers, and blasting. See June 2018 statement. Initially, the Board finds that right ear hearing loss preexisted service and was “noted” upon service entrance. The November 1963 service enlistment examination showed that the Veteran had right ear hearing loss for VA purposes (38 C.F.R. § 3.385). The Veteran had a right ear pure tone threshold of 55 decibels at 3000 Hertz and 65 decibels at 4000 Hertz. These thresholds are demonstrative of hearing loss prior to service. See 38 C.F.R. § 3.385. As such, the Board finds that right ear loss was “noted” upon entry into active service. 38 C.F.R. § 3.304(b); Mckinney v. McDonald, 28 Vet. App. 15 (2016) (the term “defect” at service entrance should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385). As hearing loss was noted at service entrance, the presumption of soundness at entry into active service does not attach. See 38 U.S.C. § 1132. Because the preexisting right ear hearing loss disability was noted at the time of entry into service, service connection for right ear hearing loss may be granted if it is shown that the right ear hearing loss disability worsened in severity beyond its natural progression during service (was aggravated by service). 38 U.S.C. § 1153; 38 C.F.R. § 3.306. After review of all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise as to whether the preexisting right ear hearing loss was aggravated by (worsened during) military service. The Board finds that there was in-service loud noise exposure. The Veteran asserted that the preexisting right ear hearing loss worsened during service as a result of exposure to backhoes, compressors, dozers, generators, graders, jackhammers, rock drills, scrapers, and blasting. See June 2018 statement. The Veteran is competent to report loud noise exposure and symptoms of hearing loss he experienced during service, and that the above-referenced assertions are credible because they are consistent with the evidence of record. The Board finds that the above-referenced assertions by the Veteran constitute probative evidence that the preexisting right ear hearing loss worsened during service. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was exposed to acoustic trauma (loud noise) during service, and that the preexisting right ear hearing loss was aggravated by (worsened during) service. In this case, the Board also finds that the audiometric test scores recorded at service separation are implausible and may not be relied upon as indicative of the severity of the Veteran’s hearing loss at service separation. At service entrance, the audiometric test scores ranged from 45 dB to 65 dB. In contrast, the service separation audiometric examination report reflecting audiometric test scores of, at worst, 50 dB, if accurate, would indicate the Veteran’s hearing actually improved in service, which is not plausible because, as a factual matter, hearing loss noted at service entrance that improves was not actually preexisting hearing loss, and may not be used to show preexisting hearing loss. For this reason, the service separation examination results are not valid, may not be relied upon as the factual basis for an opinion, and are to be treated as if no service separation examination results are of record. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does “not serve as a bar to service connection” where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). The Board also finds that the September 2012 and May 2017 VA opinions are inadequate for purposes of deciding service connection for right ear hearing loss. The September 2012 VA examiner indicated that, based on the service separation examination, right ear hearing loss improved prior to separation from service. The September 2012 VA examiner’s opinion is legally inadequate in its reliance on the invalid January 1966 audiometric examination report and audiometric findings that purported to show that hearing loss improved at service separation as the sole basis for the opinion. In addition, the May 2017 VA examiner concluded that there is insufficient evidence to provide an opinion as to whether the preexisting hearing loss was aggravated by service without resorting to mere speculation. See 38 C.F.R. § 3.102 (statements that involve “pure speculation or remote possibility” are not within the range of probability); Jones v. Shinseki, 23 Vet. App. 382 (2010). Because the evidence shows worsening of the preexisting right ear hearing loss during service, and there is no specific finding that the increase in disability is due to the natural progress of the disease, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation. 38 U.S.C.§ 1153; 38 C.F.R. § 3.306. The Board finds that the evidence in this case is not clear and unmistakable to show that no aggravation of the preexisting right ear hearing loss took place; therefore, the Board finds that the preexisting right ear hearing loss was aggravated by service, that is, that the preexisting right ear hearing loss worsened beyond its normal progression during service to warrant service connection for right ear hearing loss. 38 U.S.C.§ 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND Rating for Bilateral Ear Hearing Loss The Board’s instant decision grants service connection for right ear hearing loss. Prior to the Board’s instant decision, the service-connected left ear hearing loss had been assigned a noncompensable disability rating pursuant to 38 U.S.C. § 4.85(f), which rating was predicated on being service connected for hearing loss in one ear only. In implementing the Board’s grant of service connection for right ear hearing loss, the RO will assign an initial disability rating based on service connection being awarded for bilateral hearing loss. See 38 C.F.R. § 4.85(e). Thus, the issue of entitlement to an increased disability rating for left ear hearing loss is inextricably intertwined with implementing the grant of service connection for right ear hearing loss and the assignment of an initial disability rating for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matter is REMANDED for the following action: (Continued on the next page)   After implementing the Board’s grant of service connection herein for right ear hearing loss, adjudicate the initial disability rating for the service connected bilateral hearing loss. J. Parker Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel