Citation Nr: 20008404 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-08 029 DATE: January 31, 2020 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. A May 2005 rating decision denied entitlement to service connection for bilateral hearing loss. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since May 2005, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The Veteran’s bilateral hearing loss did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The May 2005 rating decision, which denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the May 2005 rating decision is new and material, and the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not 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 had active military service from March 1963 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In August 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The undersigned agreed to keep the record open for 60 days to allow the Veteran additional time to submit nexus evidence to support his claim. See August 2019 Hearing Transcript, page 8. Additional private treatment records and nexus evidence were received in September 2019. See September 2019 Medical Treatment Record – Non-Governmental Facility; September 2019 VA Examination. The Board notes that the December 2016 statement of the case (SOC) reopened the Veteran’s claim for service connection for bilateral hearing loss, but denied the claim based on de novo review of the evidence. As a threshold matter, however, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New and Material Evidence 1. New and material evidence having been received, the petition to reopen the claim for service connection for bilateral hearing loss is granted. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a September 1996 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss. See September 1996 Rating Decision – Narrative. Specifically, the RO determined that, although the Veteran’s private treatment records showed he had a bilateral hearing loss disability, there was no evidence to indicate that such hearing loss occurred in or was caused by service. The Veteran was notified of this decision in an October 1996 letter. The Veteran did not file a notice of disagreement with the September 1996 rating decision, and no new and material evidence was received within one year of notice of that decision. Accordingly, it is final. The record contains subsequent rating decisions with respect to the Veteran's claim for service connection for bilateral hearing loss dated in January 2004, January 2005 and May 2005. In June 2003, the Veteran filed a request to reopen his claim for entitlement to service connection for bilateral hearing loss. See June 2003 VA 21-4138 Statement in Support of Claim. In the January 2004 rating decision, the RO determined that the Veteran had not submitted any additional evidence and, as such, did not reopen the claim. See January 2004 Rating Decision – Narrative. The Veteran filed another request to reopen his claim for entitlement to service connection for bilateral hearing loss in November 2004. See November 2004 VA 21-4138 Statement in Support of Claim. To support his claim, the Veteran submitted private treatment records dated from February 1991 through December 1998. In the January 2005 rating decision, the RO denied the Veteran’s request to reopen his claim for service connection for bilateral hearing loss because the evidence submitted was duplicative of evidence considered in the September 1996 rating decision, and as such, not new and material. See January 2005 Rating Decision – Narrative. The Veteran submitted additional evidence in January 2005, including audiometric testing results from Southwestern Ear, Nose and Throat Associates, P.A. See January 2005 VA 21-8947 Compensation and Pension Award. In the May 2005 rating decision, the RO continued the previous denial of the Veteran’s claim for service connection for bilateral hearing loss. See May 2005 Rating Decision – Narrative. Specifically, the RO determined that the evidence the Veteran submitted was not new and material because, although it showed the Veteran had a current hearing loss disability, it did not support a nexus between Veteran’s current disability and his military service. The evidence considered at the time of the May 2005 rating decision included the audiometric testing results from Southwestern Ear, Nose and Throat Associates, P.A. dated in January 2005, which showed the Veteran had a long-standing hearing loss disability, noise exposure and tinnitus. See May 2005 Rating Decision – Narrative. The Veteran did not submit a notice of disagreement with the May 2005 rating decision. No new and material evidence was received by VA within one year of the issuance of the May 2005 rating decision. As such, the May 2005 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). The Veteran filed his claim to reopen in December 2014. Since the final May 2005 rating decision, a March 2015 VA opinion, an August 2019 hearing transcript and private treatment records dated from December 1991 through September 2019 have been added to the file. During the August 2019 hearing before the Board, the Veteran testified that he first experienced hearing loss symptoms after he was exposed to noise from jet engines and firearms in service, and stated that he has had hearing loss symptoms since the in-service noise exposure. See August 2019 Hearing Transcript, pages 3-4, 8. The Veteran’s private treatment records include a January 2005 progress note stating that the Veteran’s hearing loss was probably related to his history of noise exposure, and a September 2019 nexus opinion stating that the Veteran’s hearing loss was likely based on multiple factors, including loud noise exposure. See January 2015 Medical Treatment Record – Non-Government Facility; September 2019 Medical Treatment Record – Non-Government Facility; September 2019 VA Examination. This evidence is new and material because it was not of record at the time of the final RO decision in May 2005, and indicates the Veteran has a current disability which may be related to noise exposure during active duty service. The Board finds this evidence would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss, and as such, the claim is now reopened. See Shade, 24 Vet. App. at 110. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (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). Certain diseases, including hearing loss, may be presumed to have been incurred in service when they manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz are 40 decibels or greater; or at least three of the frequencies 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. 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). 2. Entitlement to service connection for bilateral hearing loss is denied. At the August 2019 hearing, the Veteran testified that his hearing loss disability manifested after he was exposed to noise from jet engines and firearms in service. The Veteran reported that he worked in ammunition supply and taught small arms training while he was stationed at Kunsan Air Base in Korea. The Veteran also stated that he was exposed to noise from the flight line at Laughlin Air Force Base, where he worked in an adjacent supply office, and from firing weapons as a volunteer in the Honor Guard. The Veteran reported that he did not wear ear protection in service. See August 2019 Hearing Transcript, pages 2-4, 8. Additionally, the Veteran reported that he sought treatment for hearing loss in service and complained about high frequency hearing loss during his separation physical. See April 1996 VA 21-4138 Statement in Support of Claim; July 2003 VA 21-4138 Statement in Support of Claim. A review of the service treatment records (STRs) shows a March 1963 enlistment report of medical examination that notes the Veteran’s ears and drums to be normal. The Veteran underwent audiometric testing during his March 1963 enlistment and November 1966 discharge examinations. The Board notes that as the Veteran’s enlistment examination and separation examination both date prior to January 1, 1967, the Board will assume his service department audiometric results were reported using standards set forth by the American Standard Association (ASA). Since VA’s current definition for a hearing loss disability, found at 38 C.F.R. § 3.385, is based on International Standards Organization (ISO)-American National Standards Institute (ANSI) (ISO-ANSI units), his in-service audiograms must be converted from ASA to ISO-ANSI units prior to making findings related to claimed hearing loss disabilities. ASA units are converted to ISO-ANSI units by adding 15 decibels to the finding at 500 Hz; 10 decibels to the findings at 1000 Hz, 2000 Hz, and 3000 Hz; and 5 decibels to the finding at 4000 Hz. Based on the above, the March 1963 enlistment examination shows the following audiometric testing results: ASA Standard HERTZ 500 1000 2000 3000 4000 Right 0 0 5 --- 0 Left 0 0 0 --- 5 ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 Right 15 10 15 --- 5 Left 15 10 10 --- 10 The Veteran’s STRs are absent for any signs, symptoms, or diagnosis of ear-related injury or disease. The Board notes that the claims file includes two discharge reports of medical history dated in November 1966. On one of the November 1966 discharge reports of medical history, the Veteran reported that he had ear, nose, or throat trouble. There, the examiner reported that the Veteran had a history of bronchitis recurring annually but did not note any other diagnoses ascribable to ear, nose, or throat trouble. However, on the other discharge report, the mark that would denote ear, nose or throat trouble has been crossed out and altered to deny any such complaints. The November 1966 separation report of medical examination notes the Veteran’s ears and drums to be normal and shows that his audiological testing results improved during service. The examiner noted the following audiological testing results: ASA Standard HERTZ 500 1000 2000 3000 4000 Right -10 -10 -10 -10 -10 Left -10 -10 -10 0 0 ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 Right 5 0 0 0 -5 Left 5 0 0 10 5 In summary, there is no showing of any hearing loss in the STRs. Similarly, there is no indication of hearing loss compensable to a 10 percent degree within one year after his separation from service. 38 C.F.R. §§ 3.307, 3.309, 3.385. For example, in August 1968, approximately two years after his separation from service, the Veteran signed a certification of physical fitness in which he attested that, to the best of his knowledge, he did not have any medical defect, disease, or disability that would disqualify him from military duty, and that his medical condition had not undergone a change since service. See July 1996 STR – Medical. In support of his claim, the Veteran submitted private treatment records from Dr. Greg Schackel, which show he was involved in auto accidents in October 1990 and April 1992. A private treatment record dated in February 1991 shows the Veteran sought treatment for hearing loss following his October 1990 auto accident. There, the Veteran reported a history of noise exposure in service and that he was an occasional hunter, but did not state that he had had ongoing symptoms of hearing loss since service. Dr. Schackel noted that the Veteran had had serious otitis media following the accident and diagnosed the Veteran with a noise induced mild high frequency hearing loss, which was most likely not related to noise exposure from the October 1990 auto accident. See November 2004 Medical Treatment Record – Non-Government Facility. The Veteran’s private treatment records show he underwent ten post-service audiograms between February 1991 and October 2013. The first post-service audiological examination of record was conducted in February 1991, approximately 25 years after service, and shows that the Veteran did not have a hearing loss disability for VA purposes, pursuant to 38 C.F.R. § 3.385. See November 2004 Medical Treatment Record – Non-Government Facility. The February 1991 audiometric test results were as follows: HERTZ 500 1000 2000 3000 4000 Right 10 5 5 20 Left 5 5 5 25 The first subsequent post-service audiological examination to show hearing loss for VA purposes is dated in January 2005, approximately 38 years after service. See January 2005 VA 21-8947 Compensation and Pension Award. The January 2005 private provider noted that the Veteran had long standing hearing loss, which was probably related to his history of noise exposure, and recorded the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 10 10 15 20 35 Left 10 10 10 25 40 The most current private audiogram of record is dated in October 2013 and showed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 15 15 20 30 50 Left 15 10 10 30 50 See January 2015 Medical Treatment Record – Non-Government Facility. The Board notes that the ten private audiometric examinations of record did not utilize the Maryland CNC test, as required pursuant to 38 C.F.R. § 3.385. The word list requirement in the regulation is very specific and differs from other word lists used to test hearing impairment. VA obtained a medical opinion in March 2015. After reviewing the Veteran’s claims file, the March 2015 VA examiner reported that there was no evidence on which to conclude that the Veteran’s hearing loss disability was caused by or the result of his military service, to include noise exposure. The examiner noted that the Veteran’s STRs showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. Further, there was no record of complaint or treatment of the claimed hearing loss. The Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Thus, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s bilateral hearing loss was incurred in or caused by the claimed in-service injury, event, or illness. See March 2015 C&P examination. In support of his claim, the Veteran also submitted an audiological examination report and medical opinion from Dr. Jared Seibert dated in September 2019. Dr. Seibert noted diagnoses for sensory hearing loss and tinnitus and stated the date of both diagnoses to be greater than 40 years ago. During the examination, the Veteran reported that his hearing loss symptoms started after he was exposed to loud noises during service. See September 2019 VA examination. Dr. Seibert reviewed the Veteran’s audiograms dated from 2011 through the present and stated that, depending on the audiogram, there was notching just above 4000 Hz, which could be considered consistent with loud noise exposure hearing loss. Dr. Seibert opined that the cause of the Veteran’s hearing loss was most likely multifactorial, to include as due to loud noise exposure and presbycusis. See September 2019 Medical Treatment – Non-Government Facility. After a review of the evidence of record, the Board finds service connection for bilateral hearing loss is not warranted. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, audiometric testing conducted by Dr. Schackel in January 2005 shows the auditory threshold in the 4000 Hz frequency at 40 decibels. See January 2005 VA 21-8947 Compensation and Pension Award. Accordingly, the Veteran meets the regulatory criteria for impaired hearing and the remaining question is whether his bilateral hearing loss is related to service. 38 C.F.R. § 3.385. Initially, the Board notes that the Veteran’s STRs do not reveal any complaints of, or treatment for, hearing loss, and hearing loss was not found during his in-service audiological testing. Further, post-service private treatment records show that the Veteran did not develop hearing loss for VA purposes until January 2005, approximately 38 years after separation from service. See November 2004 Medical Treatment Record – Non-Government Facility. The Board notes the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that there are conflicting medical opinions as to whether the Veteran’s current bilateral hearing loss disability is related to service. After a review of those opinions, the Board finds the March 2015 VA opinion to be the most probative evidence of record. In this regard, while Dr. Seibert opined that the cause of the Veteran’s hearing loss disability was likely multifactorial, to include as due to loud noise exposure and presbycusis, on the September 2019 private examination report, he did not review the complete claims file, to include all medical records dated prior to 2011 or STRs. As Dr. Seibert did not consider relevant information, to include the Veteran’s STRs and post-service records dated in the 1990s reflecting that there was an intervening post-service incident that contributed to his hearing loss, the opinion is afforded reduced probative value as it is based on an incomplete factual premise. In contrast, the March 2015 VA examiner provided a rationale in support of the negative nexus opinion. The probative value of the March 2015 VA opinion is bolstered by the Veteran’s August 1968 certification of physical fitness, in which the Veteran attested that, to the best of his knowledge, he did not have any medical disorder that would disqualify him from service, and that his medical condition had not undergone a change since service, and the Veteran’s post-service private treatment records, which show that he did not develop hearing loss for VA purposes until January 2005, approximately 38 years after service. See July 1996 STR – Medical; November 2004 Medical Treatment Record – Non-Government Facility. Accordingly, the Board finds March 2015 VA examination report with supporting rationale to be of more probative value than the September 2019 private physical examination report, in which the examiner did not review the Veteran’s STRs or records dated prior to 2011. The Board further recognizes the Veteran’s assertion that his claimed bilateral hearing loss is related to in-service traumatic noise exposure. In this regard, a Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). While a Veteran can competently report the onset and continuity of hearing loss symptoms, an actual diagnosis of sensorineural hearing loss requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes. Moreover, hearing loss can have many causes, and the Veteran is not competent to opine as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In any event, the Board finds that the Veteran has provided conflicting statements as to when he first developed hearing loss symptoms. During his August 2019 Board hearing, the Veteran testified that his bilateral hearing loss disability began after he was exposed to noise from jet engines and firearms in service. In addition, the Veteran reported that he sought treatment for hearing loss during and after service. See August 2019 Hearing Transcript, pages 3-4, 8. However, the Veteran’s STRs are absent for any signs, symptoms, or diagnoses of ear-related injury or disease and the first post-service treatment records in his claims file are dated in February 1991, approximately 25 years after service. See July 1996 STR – Medical; November 2004 Medical Treatment Record – Non-Government Facility. In addition, the Board notes that the Veteran sought treatment for hearing loss in February 1991, shortly after his October 1990 auto accident. In this regard, as the Veteran sought treatment for hearing loss shortly after he was exposed to loud noise in an auto accident, it would be reasonable to assume that he would have reported a history of hearing loss symptoms since service. However, although the Veteran reported a history of noise exposure in service, he did not report ongoing hearing loss symptoms since service. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). The Board finds that information he provided to a healthcare professional for treatment or diagnostic purposes is reliable as a person seeking treatment is motivated to provide accurate information to receive accurate treatment. Furthermore, records created contemporaneously with service (STRs) and following the post-service auto accident are more reliable than subsequent statements made based on recollection many years later. Curry v. Brown, 7 Vet. App. 59, 68 (1994). (Continued on the next page)   Therefore, the Board concludes that any lay assertions by the Veteran in the present case are outweighed by the medical evidence of record, including the March 2015 VA opinion. The examiner has training, knowledge, and expertise on which she relied to form her opinion and she provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. Accordingly, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Law Clerk 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.