Citation Nr: 21005006 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-39 833 DATE: January 28, 2021 ORDER New and material evidence having been received, the Veteran’s application to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss was originally denied by an October 2009 rating decision. He did not appeal that decision and it became final. 2. Evidence received since the October 2009 rating decision is new and it is material as it relates to an unestablished fact necessary to substantiate the claim. 3. Resolving all reasonable doubt in his favor, the Veteran’s bilateral hearing loss is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The October 2009 rating decision originally denying the Veteran’s claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the October 2009 rating decision is new and material, and the Veteran’s claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110, 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 Army from August 1964 to June 1967. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in May 2019. 1. New and Material Evidence In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). An October 2009 rating decision originally denied the Veteran’s claim on the basis that the Veteran did not have a diagnosis of bilateral hearing loss. The Veteran did not timely appeal that decision and it became final. Since the October 2009 rating decision, the Veteran was afforded a VA examination for his bilateral hearing loss in July 2016. The examination report confirms a diagnosis of bilateral hearing loss. As such, new and material evidence has been received and the Veteran’s claim is reopened. 2. Entitlement to service connection for bilateral hearing loss. Generally, to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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). As noted above, a July 2016 VA examination report confirms a diagnosis of bilateral hearing loss. The Veteran’s service treatment records do not document any complaints, treatment, or diagnoses related to hearing loss. However, on his report of medical history on separation in June 1967, the Veteran endorsed “ear, nose, or throat trouble.” The Board is unable to discern the physician’s summary of the Veteran’s complaints and it is worth noting that he was not afforded an audiological examination on discharge. At his Board hearing, the Veteran endorsed acoustic trauma during service. His DD214 indicates that his MOS was lineman during the Vietnam Era. This MOS has a high probability of noise exposure. As such, the first and second elements of service connection have been met. The question before the Board is therefore whether there is a so-called “nexus” between the Veteran’s bilateral hearing loss and service. There are three medical opinions of record. In July 2016, the VA examiner stated that she could not provide an opinion without resorting to mere speculation as “there is no evidence in his file to substantiate the hearing loss occurred during service. The Veteran reports he worked for 11 years post active duty on a flight line with a high probability of hazardous noise.” In October 2016 and again in May 2019, the Veteran’s private physician opined that the Veteran’s bilateral hearing loss was at least as likely as not related to service. Essentially, the examiner explained that although the Veteran’s hearing loss did not have its onset immediately after service, the noise exposure in service substantially accelerated his hearing loss. The opinion was based on a thorough understanding of the Veteran’s medical history. The July 2016 VA examiner’s findings do not weigh for or against the Veteran’s claim. However, resolving all reasonable doubt in the Veteran’s favor, the Board finds the October 2016 and May 2019 private medical opinions are sufficient to establish a nexus between the Veteran’s bilateral hearing loss and service. Therefore, service connection for bilateral hearing loss is granted. This represents a full grant of the benefit sought on appeal. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.