Citation Nr: 19166757 Decision Date: 08/29/19 Archive Date: 08/28/19 DOCKET NO. 19-16 048 DATE: August 29, 2019 ORDER Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A final May 2015 rating decision denied service connection for bilateral hearing loss on the basis that the evidence of record failed to show a link between hearing loss and service. 2. Evidence received since the May 2015 rating decision includes a private medical opinion relating bilateral hearing loss to service; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss is at least as likely as not related to acoustic trauma in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to June 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.200 20.1100, 20.1103, 20.1104. However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim of entitlement to service connection for bilateral hearing loss was first denied in May 2015 on the basis that the evidence of record failed to show a medical link between hearing loss and service. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the claim to reopen the previously-denied claim for service connection for bilateral hearing loss, the Veteran has submitted a private medical opinion linking his bilateral hearing loss to service. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for bilateral hearing loss is reopened. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends he has bilateral hearing loss due to acoustic trauma incurred during service. His hazardous noise exposure during service has previously been conceded. The Board concludes that the Veteran has a current diagnosis of bilateral hearing loss that is related to his acoustic trauma during service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.385. In March 2019, the VA examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in service. The rationale was that the Veteran’s enlistment and separation physical examinations included normal audiograms. While the examiner acknowledged the Veteran’s military occupational specialty had a high probability of noise exposure, he noted the Veteran did not have a shift in hearing during service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Because the VA examiner’s opinion is based solely upon the absence of documented hearing loss at separation, the Board finds the opinion to be of little probative value. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). In March 2017, the Veteran’s private physician noted he had a history of regular exposure to loud noises during his military service, and opined that hearing loss was due to that exposure. After this review of the evidence, resolving all reasonable doubt in the Veteran’s favor, the Board grants service connection for bilateral hearing loss. In summary, the Veteran currently has bilateral hearing loss, and he had acoustic trauma in service. As to the remaining element, the evidence is at least in equipoise as to the etiology of the bilateral hearing loss. As such, the Board grants the benefit sought. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.