Citation Nr: 21002015 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-60 372 DATE: January 12, 2021 ORDER The claim for entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. An August 2014 rating decision denied the claim for service connection for bilateral hearing loss. The Veteran did not appeal that decision, and new and material evidence was not submitted within the appeal period. 2. Evidence added to the record since the August 2014 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 3. The Veteran’s bilateral hearing loss disability was incurred as a result of in-service noise exposure. CONCLUSIONS OF LAW 1. The August 2014 decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from January 1995 to May 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran provided testimony in November 2020 before the undersigned. A copy of the transcript is associated with the claims file. Requests to Reopen Previously Denied Claims for Service Connection Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Request to reopen the claim for service connection for bilateral hearing loss. The Veteran contends that he was exposed to hazardous noise as a mechanic on the C-53E Super Stallion helicopter during active duty service. The Veteran’s claim for service connection for hearing loss was initially denied in an August 2014 rating decision. The RO determined that the Veteran did not have a current hearing loss disability for VA purposes. At the time of the decision, the evidence included service treatment records (STRs) and VA treatment records. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. In support of the claim to reopen, a December 2015 VA examination was administered and reflects a current diagnosis of bilateral sensorineural hearing loss for VA purposes. This constitutes new and material evidence presenting a reasonable possibility of substantiating the claims on the merits. Hence, reopening of the claim for service connection for hearing loss is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks service connection for a bilateral hearing loss disability. The Board finds service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his current bilateral hearing loss was caused by in-service occupational noise exposure as a helicopter mechanic. See November 2020 Hearing Transcript. For VA compensation purposes, impaired hearing will be 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. The Veteran’s October 1994 enlistment examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 5 10 LEFT 10 5 0 10 10 A January 1995 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 -10 5 10 LEFT 5 5 -10 5 10 A March 1996 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 25 10 25 LEFT 15 10 5 15 20 An April 1997 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 0 5 15 LEFT -5 -5 -5 5 10 A March 1998 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -5 10 10 LEFT 10 10 0 15 15 The April 5, 1999 separation examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 5 0 LEFT 5 10 5 25 15 An April 12, 1999 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 10 15 LEFT 10 5 5 15 20 The Veteran also reported that he did not know whether he had hearing loss on his April 1999 report of medical history. The Veteran was afforded a VA examination in December 2015. The examination reflected a bilateral hearing loss disability for VA purposes as the auditory threshold for more than one frequency was greater than 40 dB in both ears. The speech discrimination score was 94 percent in the right ear and 92 percent in the left ear. The examiner noted bilateral sensorineural hearing loss and permanent positive threshold shift greater than normal measurement variability at any frequency between 500-6000Hz. The examiner also noted that the Veteran’s military occupational specialty (MOS) as a C-53E helicopter mechanic has a high probability of hazardous noise exposure. The examiner provided a negative nexus opinion for the Veteran’s bilateral hearing loss based upon an absence of shifts in hearing acuity during the Veteran’s active service and normal hearing upon separation, and concluded there is no evidence that military noise exposure caused a permanent noise injury affecting hearing sensitivity. An October 2019 private audiogram submitted by the Veteran also reflected bilateral hearing loss disability for VA purposes as the auditory threshold for more than one frequency was greater than 40 dB in both ears. The speech discrimination score was 88 percent in the right ear and 92 percent in the left ear, although it is unclear whether the MD CNC test was used. The examiner noted the Veteran reported significant noise exposure during his tour of duty while working on helicopters. With regard to the evaluation, the examiner noted the results indicated the presence of bilateral sloping sensorineural hearing loss, and that although sensitivity in the lower frequencies were within normal range, hearing had sloped to a moderately severe loss at 4000Hz and to profound losses above these frequencies. The examiner reported these findings to be consistent with a noise induced bilateral hearing loss and concluded it is as least as likely as not the Veteran’s hearing loss is linked to his military service due to significant noise exposure. During his November 2020 Board hearing, the Veteran reported that he noticed a decline in his hearing prior to separation from service; he stated that he failed three hearing tests before he was told to clean his ears and spend 24 hours at a sound reduced area in which he subsequently passed on the fourth hearing test. He reported that following service, he experienced constant ringing in his ears, ear infections, nausea, headaches, and loss of balance; he also reported that his hearing loss caused increased anxiety and blood pressure and significantly affected his social/leisure activities. He stated his hearing loss continued to worsen following service but did not seek treatment because he was not offered insurance with his previous employers and was busy providing for his family. He indicated that his wife and children always told him that he was hard of hearing when they tried to communicate with him. The Veteran reported he first sought treatment for his hearing with the VA in 2014 and was given hearing aids most recently in 2019. The record shows the Veteran meets VA’s criteria for hearing loss, bilaterally. The December 2015 VA and October 2019 private audiograms show pure tone thresholds were in excess of 40 decibels in the frequencies of 3000Hz and 4000Hz, bilaterally. Therefore, the first element for service connection is met. The Board also finds the evidence of record sufficient to support the second requirement for service connection, an in-service occurrence. While the Veteran’s service treatment records do not document any specific noise injuries, the Veteran is competent to provide lay evidence of his in-service noise exposure. The Veteran reported that he spent four and a half years working as a mechanic on the C-53E Super Stallion helicopter. He trouble shooted the aircraft engine, while running and routinely operated maintenance on the rotor head and blades of an auxiliary power plant, to include towing and stowing aircraft. He also reported that exposure to flight and ground maintenance over the aircraft exceeded 90dB, and at times even higher, during an increase in torque proximity to engines. See November 2020 Hearing Transcript and Correspondence. The Veteran’s DD-214 shows his MOS as a helicopter mechanic. The Veteran stated that his hearing loss began in service and continued to worsen over the years following service but he did not seek treatment until 2014 due to the lack of insurance to cover such treatments. He indicated that his hearing loss has impacted his ability to hear and understand others. More notably, the December 2015 VA examiner indicated the Veteran’s MOS as a helicopter mechanic carries a high probability for hazardous noise exposure. Therefore, the Board finds that the Veteran was exposed to hazardous noise during service. Regarding the final requirement of a nexus between the Veteran’s current bilateral hearing loss and his in-service noise exposure, the Board finds a nexus has been established. The December 2015 VA examiner provided a negative nexus opinion and reasoned that the entrance and separation examinations did not demonstrate hearing loss or a significant shift in thresholds. The Board assigns the December 2015 opinion little probative value because the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Hensley v. Brown, 5 Vet. App. 155, 157; 38 C.F.R. § 3.303 (d). Furthermore, the examiner failed to consider the Veteran’s MOS and noise exposure as it pertains to hearing loss. The October 2019 private examiner provided a positive nexus opinion and considered the Veteran’s MOS, his lay statements regarding his noise exposure, and demonstrated why audiological findings are consistent with noise-induced hearing loss. As such, the Board assigns significant probative value to the October 2019 private opinion. More, the Veteran submitted medical literature detailing adverse noise impact associated with helicopter operations. See November 2020 Correspondence. Given the Veteran’s credible lay statements, his exposure to hazardous noise during service, and the October 2019 positive nexus opinion linking his current bilateral hearing loss to the in-service noise exposure, the Board finds that service connection for bilateral hearing loss is warranted because the disability had its onset in service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.