Citation Nr: 19123729 Decision Date: 04/01/19 Archive Date: 03/29/19 DOCKET NO. 17-55 915 DATE: April 1, 2019 ORDER The request to reopen entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Evidence received since the final June 2015 rating decision that denied service connection for bilateral hearing loss is new and material. 2. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss had its onset during active military service. CONCLUSIONS OF LAW 1. The criteria to reopen the service connection claim for bilateral hearing loss are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a), (c). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.385 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to April 1967 This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 Regional Office (RO) rating decision. Service Connection 1. The request to reopen entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss is caused by or related to acoustic trauma during active military service. The Board concludes that new evidence was associated with the claims file since the final rating decision in June 2015 denying service connection for bilateral hearing loss that relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5108; 38 C.F.R. §§ 3.303, 3.156. Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A finally decided service connection claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Id. at 118, 124 (Lance, J. concurring). The Veteran originally filed a service connection claim for hearing loss in May 2015. In a June 2015 rating decision, the RO denied the Veteran’s service connection claim for bilateral hearing loss on the basis that there was no evidence that bilateral hearing loss was incurred in service or that disabling sensorineural hearing loss was manifested to compensable degree within a year of service. The evidence of record at the time of the June 2015 denial consisted of service treatment records, service personnel records, and private treatment records. Although notified of the denial in June 2015, the Veteran did not initiate an appeal with the June 2015 rating decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. §§ 3.156(b), (c). Accordingly, the June 2015 rating decision is final. See 38 C.F.R. § 20.1103. In February 2017, the RO received the Veteran’s service connection claim for bilateral hearing loss. The relevant evidence of record received since the prior final rating decision includes an April 2018 VA examination and lay statements from the Veteran. The Veteran’s lay statements are new in that they were not of record at the time of the June 2015 rating decision. The Veteran asserts that he lost most of hearing while he was on active duty. This evidence is also material. This additional evidence is neither cumulative nor redundant of evidence of record in June 2015 and it raises reasonable possibility of substantiating the Veteran’s claim by suggesting that his hearing loss had its onset in service and indicating that there may be a link between the Veteran’s current hearing loss and service. Accordingly, the additional evidence is both new and material and, therefore, the requirements for reopening the previously denied service connection claim for bilateral hearing loss is met. See 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for bilateral hearing loss As noted above, the Veteran contends that his bilateral hearing loss was caused by acoustic trauma during active military service. The Board concludes that the Veteran has a current bilateral hearing loss disability that began during active military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The evidence of record establishes that the Veteran currently has a bilateral hearing loss disability under VA regulations. The April 2018 VA examination report shows auditory thresholds were greater than 40 dB in all of the relevant frequencies. See 38 C.F.R. § 3.385 (hearing loss is a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater). A review of the Veteran’s service treatment records reveals no complaints of or treatment for hearing loss during active military service. The service treatment records do not contain any audiograms during active military service. The Veteran’s October 1963 entrance examination conducted a hearing evaluation using a whisper test. Unfortunately, the Veteran’s service treatment records do not contain a separation examination. However, a June 1968 annual United States Naval Reserve examination reflects the Veteran demonstrated 15 out of 15 in both ears on whispered test. The first medical evidence of the Veteran receiving treatment for hearing loss was in a December 2009 private treatment record. Nonetheless, the evidence shows that the Veteran was exposed to loud noise during active military service. In this regard, the Veteran reported that he was a weapons liaison officer and his training included Drone Anti-Submarine Helicopter systems, engineer boiler room training, and gunfire support training. The Veteran’s service personnel records support the Veteran’s assertions that he was an acting weapons officer and worked on Drone Anti-Submarine Helicopter systems. Thus, exposure to loud noise would be consistent with the circumstance of his service and the Board finds that the Veteran experienced acoustic trauma during active military service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). With respect to the issue of whether the Veteran’s hearing loss is related to active military service, the record contains a negative medical opinion. The VA examiner in April 2018 determined that it is less likely that the Veteran’s current hearing loss is caused by or a result of an event in military service. She explained that it is less likely than not due primarily to military noise exposure. She discussed his military noise exposure and noted that after service his main civilian job was in sales and he denied recreational noise exposure. She explained that there was no indication the Veteran was treated for hearing loss or ear pathologies during his years in service. The first evidence of hearing loss was from a private treatment examination in 2009. This is over 40 years after separation. The Board finds that the April 2018 VA medical opinion is of low probative value with respect to providing a negative nexus to active military service. Specifically, there is nothing in VA law that to meet the requirements of service connection the disability must be primarily due to an injury or event in service. As noted above, the evidence of record shows that the Veteran experienced acoustic trauma during active military service. The April 2018 VA examiner noted that the Veteran’s military exposure is significant for noise and that outside of the military he worked in sale and he had no recreational noise exposure. Further, the examiner seemed to focus on the fact that the Veteran had normal whisper tests service and that there was no evidence of hearing loss or ear pathologies in his service treatment records. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has noted that whispered voice test did not exclude the possibility of hearing damage in the higher frequency ranges. Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009). The examiner’s evaluation reveals bilateral hearing loss to include in the higher frequency ranges. This high frequency hearing loss is the type of hearing deficiency that would not be revealed from a whispered voice test. See Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations at 12. Thus, given the test protocol utilized during the Veteran’ military service, there is no possibility that the hearing evaluations would reveal any high frequency hearing loss. The examiner also did not address the Veteran’s previous lay statements that he lost most of his hearing on active duty. The Board notes that the Veteran contends that his current hearing loss disability began during active military service. Specifically, in a February 2018 VA Form 9 the Veteran explained that he lost most of his hearing on active duty. The Veteran is considered competent to report experiencing a decrease in hearing during active military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, there is nothing in the claims file that contradicts the Veteran’s statements as to the onset of his current hearing loss. Accordingly, the Veteran’s lay statements as to the onset his hearing loss are credible. Further, the Veteran asserts that his tinnitus began after gunfire support exercises during active military service. The April 2018 examiner determined that the Veteran’s tinnitus is at least as likely as not due to military noise exposure based on the Veteran’s lay statements and the RO granted tinnitus in an April 2018 rating decision. Thus, it is reasonable to infer that the Veteran’s current hearing loss disability began during service, even though a hearing loss disability for VA purposes was not shown until sometime later, particularly given that there is no evidence of any significant post-service noise exposure. The Veteran is competent to report his observable symptoms such as having trouble hearing, and there is no reason to doubt his credibility in that regard. Accordingly, the Veteran’s statements as to when he first noticed a hearing loss are afforded great probative weight. (Continued on the next page)   In considering the evidence discussed above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel