Citation Nr: 21000385 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-26 730 DATE: January 5, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A December 2012 rating decision by the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for bilateral hearing loss based on findings that the Veteran did not have a diagnosis of hearing loss for VA compensation purposes in his left ear and that his hearing loss disability in his right ear was not caused by or a result of his active military service. The Veteran did not appeal this decision or submit new evidence within one year of the denial. 2. The evidence added to the record regarding the claim for entitlement to service connection for bilateral hearing loss since the December 2012 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The December 2012 rating decision that denied entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 20.1100(a), 20.1104. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from June 1978 to March 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a video hearing in October 2019. A transcript of this hearing has been associated with the record. New and Material Evidence 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, a claim which has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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. 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). 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). 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. The Veteran submitted an initial claim for service connection for bilateral hearing loss in July 2012. Specifically, the Veteran argued that his bilateral hearing loss was a direct result of his military noise exposure. In connection with his claim, the AOJ obtained the Veteran’s service treatment records (STRs) and a VA examination. The claim was denied in a December 2012 rating decision, and the Veteran did not appeal this decision. The Veteran filed a subsequent petition to re-open his claim for entitlement to service connection for bilateral hearing loss in February 2016, along with the evidence discussed below. The AOJ issued a rating decision in March 2016 finding that the Veteran’s claim was reopened as the evidence the Veteran submitted was new and material but denying the claim on the merits. The Veteran then filed a notice of disagreement (NOD) in February 2017 and appealed these matters to the Board. The Board finds that the evidence received since the December 2012 rating decision is in fact new and material evidence, to include private treatment records, a VA examination, and lay statements from the Veteran. The Board finds that the evidence added to the record since the December 2012 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim. Consequently, the Board finds that new and material evidence has been received to re-open the previously denied claim of entitlement to service connection for bilateral hearing loss. The underlying merits of this issue will be discussed below. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to his in-service noise exposure. The Veteran was afforded a VA examination in connection with his service connection claim in May 2017. The VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to his in-service noise exposure because various audiograms over the course of service did not show hearing loss for VA compensation purposes in accordance with 38 C.F.R. § 3.385. Additionally, the VA examiner reasoned that the audiograms that do reflect hearing loss in service (from July 8, 1982) this was determined to be related to otitis media. Further, the VA examiner cited a September 2005 study from Institute of Medicine (IOM) which states “there is no scientific basis for delayed or late onset noise-induced hearing loss, i.e., hearing loss normal at discharge and causally attributable to military noise exposure 20-30 years later.” The VA examiner concluded that “[b]ecause there was no hearing loss at separation, there is no evidence to suggest [the Veteran’s] hearing status would be impacted later in life because of the noise events in service.” The Veteran testified during an October 2019 Board hearing that while he was in service, he served as a gunner’s mate and his duties placed him between gun mounts and on the gunwale without adequate hearing protection. Additionally, the Veteran testified that during service, as a result of the noise exposure and concussions from the guns, both of his ear drums were perforated. The Veteran also indicated during the October 2019 Board hearing that following his separation from service, he was employed as an electronic technician, which has minimal occupational noise associated with the position, no loud noises, and the Veteran testified that he participated in “a safety group that measures decibels at work and it’s always well below General Electric’s standards.” The Veteran also testified that since separation from service, he has not experienced any recreational exposure to loud noise. The Veteran stated “I golf. I don’t fire guns; I don’t play loud music. So, I don’t have any exposure to loud noises.” The Board finds that considering the Veteran’s testimony and lay statements, the May 2017 medical opinion is insufficient to allow the Board to determine whether the Veteran is entitled to service connection for bilateral hearing loss. The Veteran has asserted that he has had little to no noise exposure, whether occupational or recreational, since separation from service and has provided lay statements regarding the details and severity of his in-service noise exposure, to include the fact that he was often not afforded adequate hearing protection. The May 2017 VA examiner did not consider these lay contentions in formulating his opinion regarding the etiology of the Veteran’s bilateral hearing loss. Importantly, the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 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. See Hensley v. Brown, 5 Vet. App. 155 (1993). Additionally, the Court of Appeals for Veterans Claims (CAVC) has addressed the particular medical study cited in the medical opinion of record in a precedential legal opinion, in the case of McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court held that if the Board relies on a negative medical opinion, it must address the Veteran’s arguments challenging the medical text supporting that opinion and assess the existence and impact of features of the underlying medical text evidence that may affect the probative value and adequacy of the medical opinion. With specific regard to the IOM study, the case references contradictory findings within the study that may lead one to a different conclusion as to the potential for delayed-onset hearing loss. As this same study was relied on by the examiner in this case, the Board finds that the issue of contradictory findings in the IOM study has been reasonably raised by the record. For the foregoing reasons, the Board finds that a nexus opinion regarding the Veteran's current bilateral hearing loss and military service is inadequate. A remand, therefore, is required to obtain an adequate opinion that addresses the nature and etiology of the Veteran's hearing loss. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran's bilateral hearing loss. The examiner is asked to review the record and provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss is related to his military noise exposure, i.e., in-service noise exposure as a gunner or otherwise. Attention is invited to all of the Veteran’s STRs, but specifically to: VBMS, document labeled STR – Medical, receipt date 08/24/2002, page 4 (March 25, 1981 audiogram); page 6 (July 8, 1982 audiogram); page 8 (July 14, 1982 audiogram); page 10 (August 16, 1983 hearing conservation data); pages 12 – 18 (separation examination, report of medical examination and audiograms); page 36-37 (separation examination, report of medical history) of 106. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Attention is invited to VBMS, document labeled Hearing Transcript, receipt date 10/04/2019, pages 2-5 of 6. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. Further note that if relying on the IOM study, a specific discussion of the internal inconsistencies in that study must be addressed, i.e., that the study also says that “there is no sufficient evidence from longitudinal studies … to determine whether permanent noise-inducted hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure and that definitive studies to address this issue had not been performed.” The examiner is asked to provide the underlying reasons for all opinions expressed (including if possible, medical literature references) and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.