Citation Nr: 20003236 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-09 933 DATE: January 14, 2020 ORDER Whether new and material evidence has been received to reopen a previously-denied claim of an entitlement to service connection for left ear sensorineural hearing loss is granted. Entitlement to service connection for left ear sensorineural hearing loss is granted. FINDINGS OF FACT 1. In an unappealed decision issued in July 1998, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for bilateral sensorineural hearing loss. 2. Evidence added to the record since the final July 1998 decision is not cumulative or redundant of the evidence already of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left ear bilateral sensorineural hearing loss. 3. Affording the Veteran the benefit of the doubt, the Veteran had excessive noise exposure during service. 4. The Veteran is competent to report having experienced left ear hearing loss since service, and credibly reported such hearing loss. 5. The Veteran’s STRs reflect complaints of hearing loss in service. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence have been received to reopen a previously-denied claim of entitlement to service connection for a left hear sensorineural hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for left ear sensorineural hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1976 to February 1997. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision of a Department of Veterans’ Affairs Regional Office (RO). 1. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for left ear sensorineural hearing loss Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claims for service connection. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a July 1998 rating decision, the Veteran’s claim of service connection for bilateral hearing loss was denied because it was determined that the Veteran did not have hearing loss for VA purposes. The Veteran did not file a Notice of Disagreement (NOD), and therefore, the decision became final. 38 C.F.R. §§ 3.156(b), 20.1103. In January 2018, the Veteran filed another claim of service connection for his left ear hearing loss. In an April 2018 rating decision, the RO denied the Veteran’s claim based on a finding that there was no evidence of a nexus between the Veteran’s hearing loss and in-service event or injury. The Veteran filed a timely NOD in July 2018 followed by a formal appeal in April 2019. Since the final denial of the Veteran’s initial claim of service connection for hearing loss, the Veteran provided evidence, in the form of an April 2018 VA audiological examination, which shows that he has sensorineural hearing loss in the left ear for VA standards. The April 2018 VA examiner also conceded that the Veteran was exposed to acoustic trauma in service. As the Veteran’s initial service connection claim for hearing loss was denied based on the absence of evidence of a diagnosis of hearing loss for VA purposes, and the April 2018 VA audiological examination provides a diagnosis, the new evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim. Therefore, this evidence constitutes new and material evidence sufficient to reopen the Veteran’s claim of service connection for a left ear hearing loss. Service Connection Generally, to establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Organic diseases of the nervous system are presumed to have been incurred in service if they manifested to a degree of 10 percent within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309. As an organic disease of the nervous system, sensorineural hearing loss is considered a chronic disease for VA compensation purposes. See Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss is considered organic diseases of the nervous system subject to § 3.309(a)). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, when making credibility determinations, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 2. Entitlement to service connection for left ear sensorineural hearing loss At the outset, the Board notes that while the SOC frames the issue on appeal as bilateral hearing loss, the Veteran has clarified on his Form 9 that he is only appealing the issue of service connection for a left ear hearing loss. Therefore, the Board is only addressing the issue of entitlement to service connection for left ear hearing loss. The Veteran contends he is entitled to service connection for a left ear hearing loss disability. For the reasons stated below, the Board finds that service connection for left ear hearing loss disability is warranted. As required under the first prong of Shedden, the Veteran has a current left ear sensorineural hearing loss disability. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 April 2018 VA audiology examination produced the following results for the Veteran’s left ear: HERTZ 500 1000 2000 3000 4000 LEFT 15 25 25 60 70 The Veteran’s April 2018 VA examination did not return speech recognition scores based on the Maryland CNC Test for either ear. The examiner noted that the use of word recognition score is not appropriate for this Veteran because of “language difficulties, cognitive problems, inconsistent word recognition scores, etc.” Given that the auditory threshold for the frequencies of 3000 and 4000 Hertz (Hz) in the left ear measured 40 decibels (dB) or greater, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. As to the second prong of Shedden, in-service incurrence or aggravation of a disease or injury, the Veteran contends that his hearing loss was due to military noise exposure due to large guns and aircraft while he worked in the Navy as an Electronics Technician and Commander Afloat. The Veteran’s personnel records support his contentions regarding his Military Occupational Specialty (MOS). The Veteran’s DD 214 for his service in the Navy shows his MOS as both a Communication Security Devices Equipment Technician and a Fleet Satellite Communication System Shipboard Maintenance Technician. In a February 1998 statement, the Veteran reported that he was exposed to loud noises including gas turbine engines, grinding machines, jet engine noises, missile blasts, gun blasts, deck grinding machines, klaxon alarm signals, and radiotelephone broadcasts. The Board finds the Veteran to be a reliable historian as to his report of in-service noise exposure. See Jandreau, 492 F.3d at 1377. Thus, the Board credits the Veteran’s statements and concedes in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The Board also notes that the Veteran has been service connected for tinnitus due to noise exposure and that the April 2018 VA audiological examiner also concedes the Veteran’s noise exposure in service. Addressing the third prong of Shedden, nexus between the current disability and conceded in-service noise exposure, the Board considers the medical opinions and the lay testimonies provided in the record. The Veteran’s enlistment examination, dated February 1975, reflects that the Veteran had normal hearing. His audiogram results for the left ear were: 5dB at 500 Hz, 5dB at 1000 Hz, 15dB at 2000 Hz, and 25dB at 4000 Hz. The Veteran was afforded a retirement examination in October 1996. The examination noted that the Veteran had hearing loss in both ears. The Veteran’s audiogram results for the left ear were: 65 dB at 500 Hz, 70 dB at 1000 Hz, 65 dB at 2000 Hz, 65 dB at 3000 Hz, 70 dB at 4000 Hz and 70 dB at 5000 Hz. The Veteran’s service treatment records (STRs) note that the Veteran complained of an inability to equalize both ears in November 1977 and complained of soreness in both ears in August 1981 after he went diving. He was diagnosed with swimmer’s ear. The Veteran’s STRs contain a note from September 1981 stating that his hearing levels were in excess of 25 dB on the 4000 and 6000 frequencies since the August 1981 audiogram. The note also speculated that the Veteran’s hearing deficiency is a problem due to a pre-service event and not due to noise exposure. The Veteran was afforded an audiological examination in May 1998. The examiner noted that the Veteran’s C-file was not reviewed. The audiogram results for the left ear were: 10 dB at 500 Hz, 15 dB at 1000 Hz, 10 dB at 2000 Hz, 20 dB at 3000 Hz, and 35 dB at 4000 Hz. The speech recognition score for the left ear was 96 percent (CNC). Based on the audiogram results, the examiner diagnosed the Veteran with hearing within normal limits bilaterally. Medical treatment records dated May 2013 note that the Veteran had hearing loss, with the hearing loss being greater in the left ear compared to the right ear since active duty. A March 2013 medical treatment record notes that the Veteran reported hearing loss in the left ear for over 10 years. The Veteran reported that he has difficulty hearing in situations with background noise and when more than one person is talking. He is a college professor and has difficulty hearing in the classroom. The Veteran also noted that he served on a ship in the Navy and was exposed to loud noise, but has not had any recent noise exposure and there was no occupational noise exposure reported. The medical record also confirmed that the Veteran had no history of ear surgery and all other ear-related symptoms were denied. The examiner also noted that the Veteran had normal hearing in the left ear through 2000 Hz decreasing to moderate to moderately severe high frequency sensorineural hearing loss. As noted above, the Veteran was afforded a VA examination in April 2018. The examiner opined that the Veteran’s left ear hearing loss is less likely as not caused by or a result of an event in military service, including as a result of military noise exposure, because a review of the Veteran’s C-file and service medical records revealed that the Veteran had normal hearing sensitivity at both the entrance and separation exams with no significant threshold shifts having occurred during active duty service, and there is no evidence that the Veteran’s military noise exposure caused a permanent noise injury affecting hearing sensitivity. While the Board finds the audiological results of the April 2018 VA examination adequate for the purpose of diagnosing the Veteran with sensorineural hearing loss in the left ear, the Board does not find the examiner’s medical opinion adequate because the rationale fails to consider the Veteran’s lay statements regarding the onset of his hearing loss and his STRs which reflect complaints of ear trouble in service, including the Veteran’s retirement examination which showed that the Veteran had hearing loss bilaterally as early as October 1996. Moreover, the examiner did not address the results of Veteran’s audiological examination, for the purpose of establishing his eligibility for retirement, which do reflect a threshold shift in the Veteran’s hearing when compared to the audiological results shown on the Veteran’s enlistment examination. Because the examiner’s April 2018 medical opinion was based on inaccurate factual premises, the Board gives the medical opinion no probative weight. Dalton v. Nicholson, 21 Vet. App. 23, 29-40 (2007). In November 1996, the Veteran consulted with the Otolaryngology – Head and Neck Surgery Clinic at the National Naval Medical Center in Bethesda, Maryland. The examiner noted that the Veteran complained of hearing loss for at least one year. A separate October 1996 medical record noted that the Veteran complained of ear trouble during his last tour aboard the USS Paul Foster on which he served from 1987 to 1989. The Veteran stated that he was exposed to several high frequency noise areas such as 5-inch 54 caliber gun blasts, helicopter flight deck operations, paint chipping equipment, deck grinding equipment, missile launches, compressed air noises, loud speakers, and gas turbine engine noises. The Veteran also stated that although he had been working in an office environment for the past 6 years with little or no noise exposure, he does not recognize the “fidelity of music or conversation with customers and clients that I should.” In a February 1998 statement, the Veteran reported that he first noticed that he could not hear very well around 1994, while he was still in service, during several briefings and conferences that he attended. Based on a review of the Veteran’s C-file, the Board finds that service-connection for left ear hearing loss is warranted based on continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). The Veteran’s STRs reflect that he complained of hearing problems in service. Additionally, the Veteran’s October 1996 retirement examination reflects that not only did the Veteran have hearing loss while in service, but his hearing had worsened since his enlistment based on the results of the audiological test in October 1996. The Veteran’s STRs also contain a note from September 1981, stating that his hearing levels were in excess of 25 dB at 4000 and 6000 frequencies since the August 1981 audiogram. These results reflect a worsening of the Veteran’s hearing when compared for the Veteran’s audiological results at the time of his enlistment, because the higher the score (0-110), the louder it had to be for an examinee to hear it, and by extension, high numbers indicate significant hearing loss. Although there is a note in the Veteran’s STRs from September 1981 that the Veteran’s hearing deficiency is a problem due to a pre-service event and not due to noise exposure, the Board does not consider this opinion probative as there is no underlying basis provided for it and the Veteran’s entrance examination does not reflect that the Veteran had a pre-existing hearing loss disability prior to his entry into service. The Veteran also reported on multiple post-service medical treatment records that he has had hearing loss since service due to acoustic trauma. The Veteran is competent to report on his experiences with hearing loss. While the Veteran has provided various dates for the onset of his hearing loss including 1994, and between 1987 and 1989, these inconsistencies do not undermine his credibility because the dates provided for the onset of his hearing loss continue to remain within his period of service and there is objective evidence in the record supporting the Veteran’s claim that he experienced hearing loss in service. As such, there is no evidence in the record that would undermine the Veteran’s credibility. Therefore, the Board finds the Veteran’s lay statements regarding his reports of hearing loss both in service and after service, and in-service noise exposure credible. Because a hearing loss disability is not capable of lay observation and requires verification by medical evidence, the Veteran’s lay statements combined with the contemporaneous medical evidence in the record, are competent to establish a diagnosis of hearing loss in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board does assign probative value to the Veteran’s lay statements as they pertain to the onset of his hearing loss in service. The Board acknowledges that the May 1998 VA examination reports that the Veteran’s hearing is within normal limits and the results of the audiological examination show an improvement in the Veteran’s hearing as compared to the results of the audiological examination for the Veteran’s retirement from the Navy. While there may have been an improvement in the Veteran’s hearing in May 1998, this improvement does not negate the fact that the Veteran complained of hearing problems in service, and that there was a shift in auditory thresholds between the Veteran’s enlistment examination and his retirement examination at the time of his discharge from service. Moreover, the May 1998 audiologist noted that the Veteran’s C-file was not reviewed. Therefore, the Board gives little probative weight to the results of the May 1998 audiological examination. Finally, the Veteran’s record shows that he was employed in an office environment after service with little to no noise exposure. Therefore, there is no evidence that the Veteran had occupational acoustic trauma after service, which could interfere with the continuity of his symptoms of hearing loss since service. Based on the evidence, continuity of symptomatology does apply in this case as there is evidence that the Veteran’s hearing loss manifested in service and has continued since service. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (Continued on next page.) In the instant case, as the weight of the evidence is at least in relative equipoise regarding the disposition of the Veteran’s claim, the benefit-of-the-doubt rule does apply, and service connection for a left ear hearing loss disability must be granted. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.