Citation Nr: 21000512 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-52 014 DATE: January 5, 2021 ORDER The application to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s claim for service connection for hearing loss was last denied in a May 1971 decision. He did not appeal that decision and it is now final. Since then, new and material evidence has been received that reasonably raises the possibility of substantiating the claim. CONCLUSION OF LAW The criteria are met to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1970. This appeal is from a February 2016 rating decision. In December 2020, the Veteran had a personal hearing with the undersigned VLJ. The application to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. “New” evidence is evidence not previously submitted to agency decisionmakers. Evidence is “material” if it 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). The Veteran’s claim was denied in a May 1971 decision. The record shows it was noted he did not have a current hearing loss disability. He did not appeal that decision, and it is now final. He filed an application to reopen hearing loss in June 2013. His claim was reopened in a July 2014 rating decision, but service connection was denied. In an October 2014 statement, he asked for reconsideration of the denial. He asserted that the evidence submitted with his original claim showed hearing loss. The AOJ (agency of original jurisdiction) did not address his request for reconsideration. He subsequently filed a NOD (notice of disagreement) in September 2015, which was rejected for being untimely, and a new claim for service connection in October 2015. At the time of the July 2014 rating decision, a NOD was defined under Rule 201 as a “written communication from a claimant…expressing dissatisfaction or disagreement with an adjudicative determination by the [AOJ] and a desire to contest the result will constitute a [NOD]. While special wording is not required, the [NOD] must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review.” 38 C.F.R. § 20.201 (2014). In March 2015, VA regulations were amended to require a specific form NOD, but this statement was received prior to that change. 38 C.F.R. §§ 20.201, 20.202. The October 2014 statement includes a copy of the VA examination, arguments as to why service connection should have been granted, and a request that the result be changed. The Board also notes that he did later file a form NOD, which supports that it had been his intention to appeal the denial of the July 2014 rating decision all along. In resolving doubt in his favor, the Board construes the October 2014 statement as a NOD to the July 2014 denial of service connection for hearing loss. Accordingly, as a NOD was received, the July 2014 rating decision is on appeal, with the last final denial being in May 1971. The Board notes the AOJ issued another rating decision denying service connection for hearing loss in October 2016. The remaining issue is whether new and material evidence has been received. The Board finds that it has: the Veteran has been diagnosed with hearing loss, which was not shown by the evidence in 1971, and he has also provided detailed testimony regarding his noise exposure and symptoms since service. The Board finds that this new evidence reasonably raises the possibility of substantiating the claim, and that the claim is reopened. The claim is granted to this extent only. REASONS FOR REMAND The claim of entitlement to service connection for bilateral hearing loss is remanded. The Veteran’s entrance examination in July 1966 contains hearing loss results labeled as ASA. They must be converted to ISO/ANSI by the VA examiner. Further, his July 1970 separation examination is not labeled as either ASA or ISO/ANSI, therefore those results must be considered as if presented in the correct unit (ISO/ANSI) and they must also be considered after converted to ISO/ANSI. Neither the July 2014 nor the April 2018 VA examiners did these conversions, and therefore those opinions are inadequate. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completion of directive 1, forward the claims file to an appropriate examiner for a report on whether it is as likely as not (50/50 probability or greater) that hearing loss is related to the Veteran’s service. The examiner is asked to review the record prior to the examination. The Veteran’s July 1966 service entrance examination shows that the results were recorded in ASA units. The examiner must convert these results to ISO/ANSI, which were the same for both ears: at 500 Hertz, 0 is converted to 15 decibels; at 1000 Hertz, 0 is converted to 10 decibels; at 2000 Hertz, 0 is converted to 10 decibels; and, at 4000 Hertz, 0 is converted to 5 decibels. His July 1970 examination is not marked as ASA or ISO/ANSI; therefore, they must be considered as if already presented in ISO/ANSI, and they must also be converted to ISO/ANSI, and the results most beneficial to the claim must be used. Here, in the right ear, at 500 Hertz, 5 decibels is shown, converted to 20 decibels; at 1000 Hertz, 10 decibels is shown, converted to 20 decibels; at 2000 Hertz, 10 decibels is shown, converted to 20 decibels; and, at 4000 Hertz, 10 decibels is shown, converted to 15 decibels. In the left ear, at 500 Hertz, 0 decibels is shown, converted to 15 decibels; at 1000 Hertz, 5 decibels is shown, converted to 15 decibels; at 2000 Hertz, 5 decibels is shown, converted to 15 decibels; and, at 4000 Hertz, 10 decibels is shown, converted to 15 decibels. His work during the service was as a Morse intercept listening to radio signals. He wore earphones and indicated it was not unusual for the radio signals to be so loud that one would have to “rip the headsets off your head”. His noise exposure has been conceded. He reports that he experienced problems with hearing during service, which is supported by the evidence that he filed a claim for hearing loss in 1971. He was not given a VA examination at that time. The examiner is asked to provide an opinion as to whether current hearing loss is related to symptoms noise exposure is service, which has been found to have caused tinnitus. The examiner is advised that having normal hearing upon separation is not dispositive of the question. All opinions must be supported with explanation. If a physical examination is required to render an opinion, the examiner is asked to so notify the scheduling authority. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.