Citation Nr: 19130331 Decision Date: 04/17/19 Archive Date: 04/17/19 DOCKET NO. 17-57 622 DATE: April 17, 2019 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for bilateral hearing loss disability is granted. FINDINGS OF FACT 1. In an unappealed November 1994 rating decision, the Veteran was denied entitlement to service connection for bilateral hearing loss disability. 2. The evidence received since the November 1994 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for bilateral hearing loss disability. 3. Bilateral hearing loss disability is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for bilateral hearing loss disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. A bilateral hearing loss disability was incurred in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from March 1946 to October 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the VA Regional Office (RO) in Winston-Salem, North Carolina. 1. Claim to Reopen In a November 1994 rating decision, the RO denied entitlement to service connection for bilateral hearing loss disability. The Veteran did not appeal that decision. The evidence that has been received since the November 1994 rating decision include an April 2014 VA audiological examination, private and VA medical records, and the Veteran’s lay statements. Additionally, in a July 2015 nexus statement, a private physician opined that the Veteran’s bilateral hearing loss disability was related to service. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hearing loss disability. Therefore, reopening of the claim is warranted. 2. Entitlement to service connection for bilateral hearing loss disability The Veteran has contended that his bilateral hearing loss disability is related to his in-service noise exposure. Specifically, the Veteran reported that while he served aboard the U.S.S. Uhlmann (DD-687) he stepped underneath a five-inch gun that fired directly above his head during a modified General Quarters. After the gun’s hot concussion threw him against an outer bulkhead, the Veteran discovered that he was deaf except for a hissing sound in his ear. Additionally, the Veteran stated that while he worked in food services the noise affected his hearing. The Board finds that the Veteran’s report of hazardous noise exposure is consistent with the facts and circumstances of his service. As such, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) reveal that a September 1968 service examination detected an auditory threshold of 35 decibels at 4000 Hz in the Veteran’s left ear; however, it was noted as nondisabling defective hearing. At previous service examinations, including his March 1946 enlistment examination, the Veteran’s hearing acuity was tested by whisper voice testing. As a result, it cannot be determined with any certainty what the Veteran’s hearing acuity was at any earlier point in time, as whisper voice tests have been determined to be an unreliable testing format. Regardless, the Veteran has reported that he first experienced symptoms associated with hearing loss while he was in active service and that those symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. Following service, the Veteran underwent private audiological testing was diagnosed with mild to moderately severe bilateral sensorineural hearing loss in February 1994. The Veteran was afforded a VA audiological evaluation in April 2014. The examiner diagnosed a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. He opined that the Veteran’s hearing loss was less as likely as not caused by or the result of noise exposure during service. In support of this opinion, the examiner stated that Veteran military occupational specialty as a mess management specialist has a low probability of noise exposure. He observed that the Veteran’s induction testing indicated normal hearing ability, bilaterally. He stated that testing throughout the Veteran’s service continued to show normal hearing with no threshold shifts greater than age progression. Further, the examiner stated that the Veteran’s STRs were silent for any complaints or diagnosis of hearing loss. He added that the Veteran reported civilian post-service noise exposure. Additionally, he noted that the Veteran’s medical history was significant for hypertension and diabetes and that Tampa VA medical center records lacked any notations for hearing loss. The Board finds that the April 2014 VA medical opinion is inadequate for adjudication purposes. Specifically, the examiner relied on service examinations that used an unreliable testing format. Additionally, the examiner did not consider the Veteran’s competent and credible statements regarding his close proximity to acoustic trauma when the five-inch gun fired directly above his head. Further, the examiner did not address the Veteran’s defective hearing noted during service in September 1968. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. In July 2015, the Veteran’s private ENT physician opined that the Veteran’s bilateral hearing loss disability was most likely noise-related based on the Veteran’s post-service treatment records, dates of service, and lay statements. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify reduced hearing acuity, and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced hearing loss while in active service and that he has continued to experience hearing loss since that time, and those statements have been found credible by the Board. While there is a VA medical opinion of record indicating that the Veteran’s currently diagnosed bilateral hearing loss disability is not related to his in-service noise exposure, that opinion is not adequate. Furthermore, the Veteran has a current diagnosis of a bilateral hearing loss disability for VA purposes that the Veteran’s private ENT physician has related to in-service noise exposure. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss disability is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel