Citation Nr: 20006399 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-61 100 DATE: January 27, 2020 ORDER New and material evidence having been submitted, the claim of service connection for bilateral hearing loss is reopened. REMANDED Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an October 1992 decision, the regional office (RO) denied service connection for bilateral hearing loss; the Veteran did not complete an appeal of that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence added to the record since the October 1992 decision denying service connection for bilateral hearing loss relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The October 1992 RO decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has been received sufficient to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1958 to January 1980, including service in the Republic of Vietnam. Awards included the Combat Action Ribbon, Navy Commendation Medal with V Device, and Bronze Star Medal with Combat Distinguishing Device. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision. In October 2019, the Veteran failed to appear for a requested video conference hearing for which he was notified in an August 2019 letter. He has not requested to reschedule his hearing or provided good cause for his failure to attend the hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for bilateral hearing loss In general, decisions of the VA Regional Office (RO) that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, a finally disallowed claim will be reopened and the former disposition will be reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. In October 1992, the RO denied the service connection claim for bilateral hearing loss because the Veteran did not have a current bilateral hearing loss disability under VA standards. The RO notified the Veteran and his representative of the decision in November 1992. He did not initiate an appeal by filing a notice of disagreement (NOD), and no additional evidence was received within the one-year appeal period following the notice of decision. Therefore, the October 1992 RO decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence of record at the time of the October 1992 decision included service treatment records; an August 1992 VA audiological examination report, which documented normal hearing bilaterally for VA purposes; and VA examination reports related to other claims. The Veteran now seeks to reopen his service connection claim for bilateral hearing loss. New evidence added to the claims file since the final October 1992 decision includes service personnel records, private and VA treatment records, VA fee-basis examination reports, and lay statements. Some of the new evidence relates to an unestablished fact necessary to establish the claim of service connection for bilateral hearing loss. Specifically, a May 2015 VA fee-basis examination report shows the Veteran has a current bilateral hearing loss disability. Accordingly, this additional evidence is both new and material and warrants reopening the service connection claim for bilateral hearing loss. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The Veteran contends that his military duty assignment as explosive ordnance disposal technician, status as a combat Veteran in Vietnam, and length of military service from 1958 until his retirement in 1980 “should be more than enough to justify [his] request for bilateral hearing loss.” See VA Form 9, Dec. 9, 2016. The Veteran’s service personnel records show that from the mid-1960s until his military retirement, his primary duty was explosive ordnance disposal technician, which involved scuba diving, parachuting, and detonating various ordnances. His records confirm his military service in the Republic of Vietnam in 1970; recognize his participation in combat by three separate combat decorations; and describe the circumstances that led to one of those awards, noting that in January 1970 in South Vietnam the Veteran and his team recovered 20 mines and fully disposed of them in one detonation. The Veteran’s report of military noise exposure is consistent with his combat experiences and with his duties as an explosive ordnance disposal technician. The issue of military noise exposure is not in dispute. At enlistment examination in June 1958 and discharge and reenlistment examination in August 1961, examination of the Veteran’s hearing was limited to whispered voice and spoken voice testing. The first documented audiometric testing is recorded in a December 1965 diving medical examination report. The results of audiometric testing throughout the Veteran’s military service are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 (ISO) (15) (10) (10) (10) (5) December 1965 (Diving) RIGHT 0 (15) 0 (10) 10 (20) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) May 1967 RIGHT -10 (5) -10 (0) -10 (0) 0 (10) 0 (5) LEFT -10 (5) -10 (0) -10 (0) -5 (5) -5 (0) April 1973 RIGHT 0 0 0 5 4 LEFT 1 00 0 0 0 May 1974 RIGHT 5 5 0 10 10 LEFT 5 0 0 5 5 May 1976 RIGHT 0 5 0 5 15 LEFT 5 0 5 5 5 April 1977 RIGHT 5 5 5 10 10 LEFT 5 5 5 5 5 March 1978 RIGHT 5 5 5 5 10 LEFT 5 5 5 5 5 November 1979 (Retirement) RIGHT 5 5 5 10 10 LEFT 5 0 0 0 5 In contemporaneous reports of medical history, the Veteran consistently denied any hearing loss. The May 1967 examination report noted large white scars on the Veteran’s right ear drum, and in May 1974 he had scarring on both ear drums; examiners consistently indicated this scarring of the ear drums, also diagnosed as tympanosclerosis, was not considered disabling. In a November 1979 report of medical history, the Veteran denied having any hearing loss, ringing in his ears, earaches, or running ears. In June 1992, VA received the Veteran’s original service connection claim for bilateral hearing loss (and tinnitus). During an August 1992 VA examination, he described his history of military noise exposure and multiple tympanic membrane perforations and ear infections during the 13 years he was a diver in the Navy. He also reported an October 1991 onset of right ear tinnitus. Audiological testing showed he did not have a current hearing loss disability in either ear for VA purposes. An October 1992 rating decision denied service connection for hearing loss and tinnitus but granted service connection for tympanosclerosis or perforated tympanic membranes and assigned a noncompensable disability rating, effective June 26, 1992. In connection with his current claim received in February 2015, the Veteran submitted private treatment records. An August 1987 note from a U.S. Air Force Hospital reflects his complaint of ringing in his ears for five to six days, pressure in his ears, lightheadedness, and headache. The impression included serous otitis media. An April 1997 “Physician Certification for Hazardous Waste Work and Respirator Use” indicated the Veteran presented for an annual employment examination and hearing loss was noted, representing a significant change from a prior audiogram and representing a significant threshold shift in the 4000 to 6000 Hertz high frequency range. Reports of the audiometric testing were not included with the medical records. In May 2015, the Veteran was afforded a VA fee-basis examination. He described his military noise exposure and reported that his tinnitus started while still in service. Audiometric testing revealed a bilateral hearing loss disability for VA purposes, diagnosed as sensorineural hearing loss in each ear. The examiner opined it was less likely than not that the current bilateral hearing loss was related to military service. The examiner explained there was a lack of evidence to support the claim that the military noise exposure caused the current hearing loss, noting that in-service audiograms showed normal hearing bilaterally, including in [November] 1979 [on retirement examination]. In addition, the in-service audiograms did not show any significant threshold shifts during service. Finally, the examiner considered the Veteran’s service-connected tympanic membrane perforations and indicated this disability did not cause the current hearing loss. The examiner detailed that tympanic membrane perforation and scarring do not typically lead to permanent sensorineural hearing loss, but rather to conductive hearing loss, which the Veteran did not exhibit on examination. Unfortunately, the May 2015 medical opinion did not address whether the Veteran’s current bilateral sensorineural hearing loss disability, which was first documented during the May 2015 VA fee-basis examination, was aggravated by service-connected tympanosclerosis. The AOJ should obtain a supplemental medical opinion. Lastly, in August 2016, the Veteran submitted a single VA outpatient treatment record from earlier that month. It is unclear whether he has received any other VA evaluation or treatment. The AOJ should ask the Veteran to identify any outstanding private, employment-related, or VA medical records related to his bilateral hearing loss disability. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, attempt to obtain the following records: a) Any employment-related reports of audiometric testing; b) All treatment records from the Houston VA Medical Center since establishing care; and c) Any other private or VA treatment records identified by the Veteran related to evaluation or treatment for bilateral hearing loss, especially any records from shortly after his military retirement in January 1980. 2. Provide the Veteran’s entire electronic claims file and a complete copy of this Remand to the May 2015 fee-basis audiologist, or to a VA audiologist, to obtain an addendum medical opinion. If an audiological examination is necessary to provide the requested opinion, the AOJ should arrange for such an examination. Following a review of the claims file, the audiologist should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that: a) the current bilateral sensorineural hearing loss, which was first demonstrated on audiometric testing in May 2015, is etiologically related to the Veteran’s military noise exposure associated with his duties as an explosive ordnance disposal technician and/or his verified participation in combat; OR b) the current bilateral sensorineural hearing loss is, or has been, aggravated by service-connected tympanosclerosis. (Continued on next page) A detailed medical explanation must be provided for all opinions expressed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.