Citation Nr: 20023087 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 19-30 284 DATE: April 3, 2020 ORDER New and material evidence having been received; the claim for entitlement to service connection for left ear hearing loss is reopened. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for left ear hearing loss was denied in the October 2008 rating decision. He was notified of this decision, did not appeal the issue, and did not submit new and material evidence within one year of its promulgation. 2. Evidence received since the October 2008 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for left ear hearing loss. 3. The evidence does not indicate the Veteran has left ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The October 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence to reopen the Veteran’s claim for service connection for left ear hearing loss has been submitted since the October 2008 rating decision; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from March 2002 to January 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that service connection for right ear hearing loss was granted in an October 2019 rating decision and an initial rating was assigned. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. New and material evidence having been received; the claim for entitlement to service connection for left ear hearing loss is reopened. The Veteran applied for service connection for hearing loss in July 2008. His claim was denied in the October 2008 rating decision record did not show audiometric findings which meet the criteria for a grant of service connection for defective hearing. Evidence considered in the October 2008 rating decision included the Veteran’s service treatment records and a VA examination report. Although notified of the denial in an October 2008 letter, the Veteran did not initiate an appeal. 38 C.F.R. §§ 20.200. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). Therefore, the October 2008 rating decision is final. Evidence associated with the claim since the October 2008 rating decision includes a VA examination with a left ear hearing loss diagnosis. This evidence is presumed credible for the purpose of determining whether new and material evidence has been submitted. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board finds that the evidence received since the October 2008 rating decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claim. On this basis, the Board finds that new and material evidence has been received to reopen the claim for service connection for left ear hearing loss. Service Connection 2. Entitlement to service connection for left ear hearing loss is denied. The Veteran contends his left ear hearing loss is related to service. In particular, he was around loud noises during his deployment. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.03. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. A veteran is entitled to the benefit of the doubt, standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). On the authorized audiological evaluation in the May 2018 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 25 25 25 30 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. It was noted that the Veteran stated, it is “hard to hear people talking, sounds like mumbling.” Overall, the May 2018 VA examiner indicated that the Veteran has left ear sensorineural hearing loss. Although the May 2018 VA examination audiological evaluation indicates the Veteran has left ear hearing loss, it does not meet the threshold for hearing loss established by 38 C.F.R. § 3.385. The Veteran is competent to state that he experiences decreased hearing acuity and his assertion is also credible. However, he is not competent to state that his decreased hearing acuity meets the standard set forth in 38 C.F.R. § 3.385. The evidence does not show that he has the experience or training needed to administer and interpret audiological testing. (Continued on the next page)   Based upon review of the evidence, the Board finds that the Veteran does not have left ear hearing loss for VA rating purposes and has not during the pendency of the claim or recent to the filing of the claim. Given that the preponderance of the evidence is unfavorable to the claim, VA’s benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds the preponderance of the evidence is against the claim and service connection is denied. Kristy L. Zadora Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate 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.