Citation Nr: 21064711 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-00 890 DATE: October 21, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claims of entitlement to service connection for left and right ear hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to a compensable rating for malaria is remanded. FINDINGS OF FACT 1. In an August 2011 decision, the Board denied service connection for left ear hearing loss. The Veteran did not appeal the Board's decision and new and material evidence was not received within the following year. 2. In a March 2012 decision, the Board denied service connection for right ear hearing loss. The Veteran did not appeal the Board's decision and new and material evidence was not received within the following year. 3. Evidence received since the final August 2011 and March 2012 Board decisions denying entitlement to service connection for left and right ear hearing loss relates to an unestablished fact necessary to substantiate the claims and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 4. The evidence is in equipoise as to whether the Veteran's current bilateral hearing loss is causally related to in-service noise exposure. CONCLUSIONS OF LAW 1. The August 2011 Board decision denying service connection for left ear hearing loss is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 2. The March 2012 Board decision denying service connection for right ear hearing loss is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 3. New and material evidence has been received to warrant reopening of the claims of service connection for left and right ear hearing loss. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1958 to July 1961. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss because the evidence submitted was not new and material and continued the noncompensable rating for malaria. On his January 2020 VA Form 9, the Veteran, through his attorney, requested a Board videoconference. In a May 2020 letter, the Board notified the Veteran and his attorney that he had been placed on the list for a hearing. In June 2020, the Board notified the Veteran and his attorney that the Veteran had been scheduled for a Board hearing to be held in July 2020. Approximately one week prior to the hearing, the Veteran's attorney requested that the hearing be rescheduled as the Veteran wished to attend in person at the Regional Office. The hearing was thereafter rescheduled for June 25, 2021. For reasons which are unclear, the day before the hearing, the Veteran's attorney withdrew the hearing request. 38 C.F.R. § 20.704(e). She further requested a 90-day extension to submit additional evidence and argument. In August 2021, she requested a 30-day extension of time to submit additional evidence. In September 2021, she submitted additional evidence and argument. The Veteran's attorney is advised that scheduling and preparing for hearings consumes significant Board resources. Cancelling or rescheduling a requested hearing at the last minute not only wastes these limited resources, it results in increased delays for other Veterans and appellants awaiting hearings. She is reminded of the standards of conduct for providing VA representation, including acting with reasonable diligence and not delaying, without good cause, the processing of a claim. 38 C.F.R. § 14.632. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. New and material evidence having been received, the application to reopen the previously denied claims of entitlement to service connection for left and right ear hearing loss is granted. An August 2011 Board decision, inter alia, denied service connection for left ear hearing loss. The Board reviewed the Veteran's service treatment records (STRs), which indicated that the Veteran was diagnosed with external otitis and impacted cerumen in August 1960. The Board also reviewed the Veteran's August 1958 induction examination and June 1961 separation examination, which showed normal hearing acuity. In addition to reviewing STRs, the Board also reviewed a February 2008 VA examination report and opinion which determined that the Veteran's left ear hearing loss was not related to his military service. Additionally, the Board reviewed the Veteran's December 2008 DRO hearing testimony to the effect that he was exposed to unprotected equipment and construction noise during active duty, as well as machine gun and other weapon fire, and experienced a severe ear infection in both ears which caused blood to run out of his ears. The Board concluded that the Veteran's left ear hearing loss had not been incurred in service nor was his current left ear hearing loss causally related to service, as there was no indication in either the Veteran's August 1958 induction examination or June 1961 separation examination of a left ear hearing problem or disorder based on the audiometric testing conducted at the time of the examinations. Additionally, the Board noted that the Veteran was not diagnosed with hearing loss until more than 4 decades after separation from active duty. The Board also concluded that the Veteran's reports regarding continuity of symptomatology were not credible. The record contains no indication that the Veteran appealed the Board's decision within the applicable time period and no new and material evidence was received in the year following notification of the decision. Neither the Veteran nor his attorney have contended otherwise. Thus, the Board's August 2011 decision is final and not subject to revision on the same factual basis. 38 C.F.R. § 20.1100(a). A subsequent March 2012 Board decision, inter alia, denied service connection for right ear hearing loss. The Board reviewed the Veteran's STRs which noted that the Veteran's external otitis was greatly improved with a great deal of debris in the ear canal in October 1960 and an itchy left ear in December 1960. The Board also reviewed his August 1958 induction examination and June 1961 separation examination, which showed hearing within normal limits. In addition to reviewing STRs, the Board also reviewed a February 2008 VA examination report and opinion which determined that the Veteran's right ear hearing loss was not related to his military service. Additionally, the Board reviewed the Veteran's December 2008 DRO hearing testimony to the effect that he was exposed to unprotected equipment and construction noise during active duty, as well as machine gun and other weapon fire, and experienced a severe ear infection in both ears which caused blood to run out of his ears. Finally, the Board considered an August 2011 VA examination report and opinion which determined that the Veteran's right ear hearing loss was not causally related to active duty. The Board concluded that the Veteran's right ear hearing loss had not been incurred in service nor was his current right ear hearing loss causally related to service. The Board also concluded that the Veteran's reports regarding continuity of symptomatology were not credible. The record contains no indication that the Veteran appealed the Board's decision within the applicable time period and no new and material evidence was received in the year following notification of the decision. Neither the Veteran nor his attorney have contended otherwise. Thus, the Board's March 2012 decision is final and not subject to revision on the same factual basis. 38 C.F.R. § 20.1100(a). In this appeal, the Veteran seeks to reopen his claims of service connection for left and right ear hearing loss. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final August 2011 and March 2012 Board decisions. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the August 2011 and March 2012 Board decisions includes VA treatment records noting that the Veteran had begun wearing hearing aids. See November 2018 VA Audiology Medical Device Note. As an additional factual basis, the record reflects that the RO has now awarded service connection for tinnitus. Also received since the final Board decisions was a positive nexus opinion from a private audiologist, K.C.-S., dated in September 2021, indicating that the Veteran's bilateral hearing loss was at least as likely as not due to military noise exposure. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claims. Specifically, the positive nexus opinion indicating that the Veteran's bilateral hearing loss was at least as likely as not causally related to in-service noise exposure, as well as the grant of service connection for tinnitus, which shows a connection between current audiological symptoms and in-service noise exposure, were not before agency decision-makers at the time of the August 2011 and March 2012 Board decisions. These records are therefore new, and directly address unestablished facts necessary to substantiate the claims of service connection for left and right ear hearing loss, particularly evidence of causation. When presumed credible, they raise a reasonable possibility of substantiating the claims and trigger the VA's duty to assist. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See Shade, 24 Vet. App. at 117. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran 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"the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including an organic disease of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 259 (holding that with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a)). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss is granted. The Veteran contends that his bilateral hearing loss is due to noise exposure during active duty. The Veteran's August 1958 Report of Medical Examination indicates that whisper voice testing was conducted and revealed acuity of 15/15 bilaterally. He was qualified for enlistment. On his enlistment Report of Medical History, he denied wearing hearing aids, or having any ear, nose, or throat trouble. An August 1960 audiological evaluation revealed acuity of 20/20 bilaterally. An August 1960 entry in the Veteran's service treatment records (STRs) noted the Veteran's reports that his ear had been bothering him for the past two weeks. Impacted cerumen was noted. The impression was external otitis. An October 1960 entry in the Veteran's STRs noted a diagnosis of left external otitis. A subsequent October 1960 entry noted that the Veteran's external otitis was greatly improved. It was noted that the Veteran still had a great deal of debris in the canal. A December 1960 entry noted an itchy left ear. It was noted that the canal had much debris. No infection was found. The Veteran's June 1961 separation examination recorded pure tone thresholds, in dB, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 10 (20) 15 (20) LEFT 0 (15) 5 (15) 10 (20) 15 (20) (Note: as this audiometric testing was conducted prior to January 1, 1967, the results were presumably reported in American Standards Association (ASA) units. Where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) standard. The converted results are reported in parentheses above). Whisper voice testing was conducted and revealed acuity of 15/15 bilaterally. On the accompanying Report of Medical History, the physician noted that the Veteran's external otitis, diagnosed in August 1960, had responded well to treatment. The Veteran was afforded a VA examination for ear diseases in February 2008. The Veteran reported that he began to experience hearing loss following an ear infection while serving in Panama. He also reported that during active duty, he was exposed to large equipment, carpentry, and construction noise, small arms fire, and grenades. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's hearing loss. The examiner opined in pertinent part, The hearing test when he left the military did not show any hearing loss or continuing ear problems. The infection (external otitis) did not cause any hearing loss nor did the noise exposure that he had during his military service cause any hearing loss. The Veteran underwent a VA audiological examination in February 2008 for complaints of hearing loss. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 60 60 LEFT 10 15 20 35 55 Speech recognition using the Maryland CNC word list was 88 percent in the right ear and 92 percent in the left. The audiologist concluded that the Veteran had bilateral sensorineural hearing loss; however, she determined that the Veteran's hearing loss was less likely as not causally related to the Veteran's in-service noise exposure. The audiologist noted in pertinent part, Because the separation audiogram showed normal hearing bilat[erally], this veteran's current hearing loss was not at least as likely as not cause by military. At a December 2008 DRO hearing, the Veteran testified that during active duty his MOS was combat engineer and as a result he was exposed to equipment and weapons noise. He also testified that he contracted infections in both ears which were so severe, blood ran out of his ears. The Veteran further testified that he believed his hearing loss was due to the ear infections and unprotected noise exposure during active duty. See December 2008 DRO Hearing Testimony, pages 2-3. The Veteran was afforded a VA examination in August 2011. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 55 60 LEFT 10 5 10 35 50 Speech recognition using the Maryland CNC word list was 46 percent in the right ear and 90 percent in the left. The audiologist concluded that the Veteran had right ear sensorineural hearing loss; however, he determined that the Veteran's hearing loss was less likely as not causally related to the Veteran's in-service noise exposure. The audiologist noted in pertinent part, Given the testimonies reported above and since the separation audiogram indicates normal sensitivity, bilaterally, the veteran's current hearing loss in both ears, particularly his right ear hearing loss, is less likely as not caused by or aggravated by military service. The Veteran was afforded a VA examination in January 2019. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 70 70 LEFT 15 20 25 65 60 Speech recognition using the Maryland CNC word list was 32 percent in the right ear and 24 percent in the left. The audiologist concluded that the Veteran had bilateral sensorineural hearing loss; however, she determined that the Veteran's hearing loss was less likely as not causally related to the Veteran's in-service noise exposure. The audiologist noted, "Patient's hearing was within normal limits on the separation examination." The Veteran was afforded a VA examination for tinnitus in August 2019. Neither pure tone thresholds nor an etiological opinion regarding the Veteran's hearing loss was provided. In correspondence dated in September 2021, a private audiologist, K.C.-S., opined that the Veteran's bilateral hearing loss was at least as likely as not due to military noise exposure. The audiologist opined in pertinent part, Based on the information given, I feel that [the Veteran] has had a long standing but worsening case of mixed sensorineural-conductive hearing loss and subjective tinnitus. Neither his medical conditions, nor his medications used for his medical conditions are felt to be contributing factors towards his hearing loss or tinnitus. As a Veteran in the Army, he had significant noise exposure, which was before OSHA required hearing protection, which can lead to acoustic trauma. This history, coupled with evidence from research studies listed above, implicates a service connection for hearing loss. It is my opinion that it is at least as likely as not that his hearing loss and tinnitus are due to military service . . . After a review of the evidence, the Board finds that service connection is warranted for bilateral hearing loss. In addressing the first element of a service connection claim, the Board finds that the Veteran currently has bilateral hearing loss. As noted in the February 2008 and August 2011 VA examinations, the Veteran's pure tone thresholds for the 3000 and 4000 Hz frequencies for the right ear were 40 decibels or greater; his pure tone threshold for the 4000 Hz frequency for the left ear was 40 decibels or greater. Additionally, his speech recognition scores for both ears were less than 94 percent. As noted in the January 2019 VA examination, his pure tone thresholds for the 3000 and 4000 Hz frequencies for the right and left ear were 40 decibels or greater, and his speech recognition scores for both ears were less than 94 percent. Therefore, the Veteran has bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. With regard to the second element, the Board finds in-service noise exposure. The Veteran has reported that he was exposed to unprotected large equipment, carpentry, and construction noise, small arms fire, and grenades. The Board notes that the Veteran's personnel records indicate that his MOS was combat engineer, a position generally consistent with noise exposure. Affording the Veteran the benefit of the doubt, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. In addressing the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to his in-service noise exposure. In this regard, the Board finds the September 2021 positive nexus opinion of great probative weight, as the audiologist rendered her opinion after thorough review of the Veteran's claims file, to include his service personnel and medical records. Moreover, the audiologist provided a reasoned conclusion and detailed rationale. The Board assigns less probative weight to the February 2008, August 2011, and January 2019 VA examinations, as the examiners appear to have based their opinions entirely on the Veteran's June 1961 separation examination which showed normal hearing acuity. The Board notes that the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of current hearing loss and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Regardless, the examiners failed to consider that the Veteran's June 1961 separation examination results showed that the Veteran incurred some hearing loss at the higher frequencies in his right ear, most notably, at 8000 Hz. Accordingly, the Board has weighed the probative evidence of record, to include the positive and negative nexus opinions, and finds that the evidence is at least in relative equipoise as to the Veteran's current bilateral hearing loss and the causal relation between the Veteran's disability and his in-service noise exposure. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for bilateral hearing loss. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a compensable rating for malaria is remanded. The Veteran was most recently afforded a VA examination for his malaria in January 2019. Since that examination, it appears that the severity of the Veteran's malaria residuals may have worsened. In correspondence dated in September 2021, the Veteran's attorney indicated that the Veteran experienced an inability to donate blood, increased fatigue, decreased immune system, slower recovery from minor illnesses, and sensitivity to heat and cold. See September 2021 correspondence from the Veteran's attorney. Although the attorney is not competent to attribute those symptoms to the Veteran's service-connected malaria, as there is an indication of possible worsening of symptoms which may be associated with malaria. Thus, the Board finds that the Veteran should be afforded a contemporaneous VA examination in order to determine the current level of severity of his service-connected malaria. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the matter is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current severity of his service-connected malaria. The claims file should be made available to and reviewed by the examiner and all necessary tests, to include blood smears, should be performed. All findings should be reported in detail. If active malaria is not found, the examiner should discuss the Veteran's symptoms, to include an inability to donate blood, increased fatigue, decreased immune system, slower recovery from minor illnesses, and sensitivity to heat and cold, as indicated in correspondence from the Veteran's attorney dated in September 2021. The examiner should discuss whether it is at least as likely as not that such asserted symptoms are residuals of the Veteran's malaria. The examiner should also opine whether there are any residuals of the liver or spleen. 2. After the development has been completed, readjudicate the claim for entitlement to a compensable rating for service-connected malaria, to include consideration of whether an extraschedular rating is warranted. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.