Citation Nr: 21004289 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-18 822A DATE: January 26, 2021 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened, and to that extent only, the appeal is granted. Service connection for bilateral hearing loss is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. A November 2008 rating decision denied service connection for bilateral hearing loss. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 3. The Veteran was exposed to acoustic trauma during active service. 4. Affording the Veteran the benefit of the doubt, his bilateral hearing loss is reasonably shown to be related to or caused by his exposure to acoustic trauma in service. 5. Affording the Veteran the benefit of the doubt, his acquired psychiatric disorder, to include PTSD, is reasonably shown to be related to/caused by active service. CONCLUSIONS OF LAW 1. The November 2008 rating decision that denied 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 has been received; the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for service connection for bilateral hearing loss. 38 U.S.C. § 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria are met for service connection for PTSD. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. [CONTINUED ON NEXT PAGE] New and Material Evidence New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for hearing loss was denied in a November 2008 rating decision. That appeal was not perfected nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes an October 2018 VA examination report and November 2020 videoconference hearing testimony. This evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened, and any deficiencies of notification and development in this case will be addressed on remand. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Service connection for bilateral hearing loss is granted. Factual Background For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. In an October VA examination, the Veteran was diagnosed with hearing loss that is severe enough to qualify as a disability for VA purposes. The audio examination report revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 80 75 LEFT 35 35 40 65 60 Speech audiometry testing revealed speech recognition scores of 100 percent in both ears. At his November 2020 Board hearing, the Veteran provided competent and credible testimony that, while he was in Vietnam during active service, after a mortar round landed very near him, he experienced observable levels of hearing loss. At the time, the Veteran reported his hearing loss and was given aspirin and told that, because he did not have blood coming out of his, he would be better after a few days. The Veteran’s observable levels of hearing loss improved after three days but never returned to the same level of acuity as before. Right after service, he tried to submit a disability benefits claim but was (erroneously) told that he was not eligible unless his ears had been bleeding during service. Analysis Although a causal relationship has not been demonstrated through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, of observable levels of bilateral hearing loss symptoms beginning during active service (following acoustic trauma) and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. This leads the Board to determine that at the very least, the evidence is evenly balanced for and against (“in relative equipoise”) as to whether the Veteran’s bilateral hearing loss is related to active service. Because of this, it is at least as likely as not that the Veteran’s current bilateral hearing loss is related to his acoustic trauma during active service. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.385. 2. Service connection for PTSD is granted. Legal Criteria Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV or DSM-5); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat). See 38 C.F.R. § 3.304(f). Factual Background In an August 2018 VA treatment note, the Veteran was diagnosed with chronic PTSD by a VA psychologist. During active service, the Veteran served in a combat environment in Vietnam and has an established stressor. In the May 2019 Statement of the Case, it was conceded that the Veteran “experienced a stressful event in service or fear of hostile military or terrorist activity.” The Board cannot assign significant probative weight to the October 2018 VA examination report because the examiner noted the diagnosis of chronic PTSD in the Veteran’s medical record but stated that the Veteran had no diagnosis and did not address or explain this conclusion that conflicts with the rest of the evidence. Analysis The Board finds the October 2018 VA examination report to be inadequate. Inadequate medical examinations and opinions include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the October 2018 VA examination report has no probative value. Although a causal relationship has not been demonstrated through the foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, of experiencing a stressful event in service or fear of hostile military or terrorist activity, to be competent and credible evidence of a valid stressor event for PTSD diagnostic purposes. 38 C.F.R. § 3.304(f). Combined with the August 2018 diagnosis of PTSD, this leads the Board to determine that, at the very least, the evidence is evenly balanced for and against (“in relative equipoise”) as to whether the Veteran’s current PTSD is related to active service. Because of this, it is at least as likely as not that the Veteran’s current PTSD is related to his stressful event in Vietnam. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for PTSD is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 125(a). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.