Citation Nr: 20004603 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-62 335A DATE: January 23, 2020 ORDER As new and material evidence has been received, the claim for entitlement to service connection for left ear hearing loss is reopened; to that extent only, the appeal is granted. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to a compensable evaluation for right ear hearing loss is remanded. FINDINGS OF FACT 1. In an October 2012 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for left ear hearing loss; the Veteran did not submit a Notice of Disagreement, no new and material evidence was received within one year of the decision, and the decision became final. 2. The evidence received since the October 2012 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for left ear hearing loss. 3. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed left ear hearing loss is etiologically related to his in-service military noise exposure. CONCLUSIONS OF LAW 1. The October 2012 rating decision that denied the claim of entitlement to service connection for left ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1972 to December 1976 and from January 1980 to June 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for left ear hearing loss and denied a compensable evaluation for right ear hearing loss. The Veteran appealed that decision. The April 2016 rating decision reopened the claim for service connection for left ear hearing loss and denied the claim for service connection for left ear hearing loss. Despite the RO’s action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss before addressing the claim on its merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran testified before the undersigned Veterans Law Judge at a December 2019 Travel Board hearing. This decision is being prepared under the Board's "one-touch" program, and a transcript of the Veteran's hearing is not yet available. Such a transcript will be added to the Veteran's file under the normal course of business. Following the December 2017 statement of the case, the Veteran submitted additional evidence in support of his appeal. The Veteran filed his substantive appeal in December 2017. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board, because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board’s favorable decision in reopening and granting service connection for left ear hearing loss, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 19.52, 20.200, 20.201, 20.202. 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. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an October 2012 rating decision, the RO denied the Veteran’s claim for service connection for left ear hearing loss, because there was no medical evidence that his left ear hearing loss was linked to service, or that his left ear hearing loss manifested within a year of separation from service. That decision is final. Since the Veteran’s last prior final denial in October 2012, the record includes lay statements in December 2019 attesting to the Veteran’s left ear hearing loss following service. The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The December 2019 lay statements will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for left ear hearing loss is reopened. Service Connection 2. Entitlement to service connection for left ear hearing loss The Veteran asserts that his current left ear hearing loss was caused by his in-service exposure to noise from mortars, rocket-propelled grenades, artillery, and heavy and small arms fire. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted and § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159-60. The question before the Board is whether the Veteran’s left ear hearing loss is etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, service connection for left ear hearing loss is warranted. According to the Veteran’s DD Form 214, his military occupational specialty (MOS) was Infantryman, Unit Supply Specialist and Automated Logistical Specialist. Given the high probability of noise exposure based on the Veteran’s MOS and the determination that the Veteran is service-connected for right ear hearing loss, the Board finds that the evidence establishes that the Veteran experienced acoustic trauma during his active duty service. The Veteran’s service treatment records (STRs) show that the Veteran had normal left ear hearing for VA purposes throughout his active duty service. An August 1996 STR noted that an audio examination revealed no significant threshold shift and that he used ear plugs for hearing protection. At his February 1998 retirement physical, the Veteran’s left ear hearing was normal for VA purposes. The evidence shows that the Veteran has a current diagnosis for left ear sensorineural hearing loss that comports with VA’s definition under 38 C.F.R. § 3.385. See September 2012 VA examination. The question remains whether the evidence demonstrates that his currently diagnosed left ear hearing loss is etiologically related to his active duty service. The Board recognizes that the record includes a September 2012 VA opinion, in which the VA examiner opines that the Veteran’s left ear hearing loss was less likely than not caused by or a result of his military noise exposure. That conclusion was based on the findings that the Veteran had normal left ear hearing during service and that there is no scientific evidence to support delayed onset of noise induced hearing loss. However, the VA examiner noted that post-service, the Veteran’s occupational noise exposure consisted of office work, and he denied having any recreational noise exposure. Nevertheless, the VA examiner did not offer another explanation for his left ear hearing loss. The Court has held that, even though disabling hearing loss may not be demonstrated at the time of separation from service, a Veteran may nevertheless establish his entitlement to service connection for a current hearing loss disability by having evidence that the current disability is related to his military service and not the result of intervening or other unrelated factors or causes. See Hensley v. Brown, 5 Vet. App. at 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). On that basis, the Board finds that the September 2012 VA examiner’s opinion is inadequate; however, based on a review of the entirety of the lay and medical evidence, the Board concludes that there is sufficient evidence to warrant service connection for left ear hearing loss. Considering the lack of any competent and credible evidence that shows that the Veteran had significant post-service noise exposure, the objective findings that establish he has hearing loss bilaterally, and the finding that his military noise exposure was sufficient to cause acoustic trauma in his right ear resulting in hearing loss, the Board concludes that resolving all reasonable doubt in favor of the Veteran, service connection for left ear hearing loss is warranted. In summary, the Board finds that the evidence is at least in equipoise that the Veteran’s currently diagnosed left ear hearing loss is etiologically related to his military noise exposure. Accordingly, the Veteran’s service connection claim must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable evaluation for right ear hearing loss is remanded. The Veteran’s last VA examination for his service-connected right ear hearing loss was in April 2016. In a December 2017 statement, the Veteran indicated that his right ear hearing loss is worsening. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the evidence suggests that the Veteran’s right ear hearing loss may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. The matter is REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran’s right ear hearing loss that are not currently of record. 2. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the current severity of his service-connected right ear hearing loss. To the extent possible, the examiner should provide current findings regarding all symptoms associated with the service-connected right ear hearing loss and should opine as to its severity. The examiner should comment on the extent of any functional impairment caused by the Veteran's right ear hearing loss, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.