Citation Nr: 21066394 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-18 038 DATE: October 29, 2021 ORDER New and material evidence having been received, the previously denied claim for service connection for left ear hearing loss is reopened. Service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. A December 2007 rating decision confirmed a prior denial of service connection for left ear hearing loss. The Veteran was notified of the decision and of his appellate rights, but he did not file a timely appeal. 2. The evidence received since the December 2007 continued denial relates to an unestablished fact necessary to substantiate the claim for service connection for left ear hearing loss and raises a reasonable possibility of substantiating that claim. 3. Affording the Veteran the benefit of the doubt, his left ear hearing loss is etiologically related to his active service. CONCLUSIONS OF LAW 1. The December 2007 rating decision that continued a prior denial of service connection for left ear hearing loss is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. 2. New and material evidence has been received sufficient to reopen the claim for service connection for left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1984 to April 1988, January 2002 to May 2002, and June 2002 to December 2002 as well as active duty for training (ACDUTRA) with the Army National Guard from May 31, 2003 to June 14, 2003. This matter comes to the Board of Veterans' Appeals (Board) from a June 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Initially, during the appeal, the Veteran requested a hearing before the Board, which was scheduled to be held in August 2021. See June 2021 Correspondence. However, he did not appear for the hearing and has not provided any arguments of good cause in support of his failure to appear at the scheduled hearing. Therefore, the Board has considered his request for a hearing withdrawn. The December 1990 rating decision denied service connection for bilateral hearing loss. Subsequent to the Veteran's application to reopen his hearing loss claim, the RO bifurcated the issue into one for service connection for right ear hearing loss and one for service connection for left ear hearing loss. Service connection for right ear hearing loss was denied by the Board in March 2019 and will not be discussed herein. See March 2019 Board Decision and May 2020 Ruling (Denial) on Motion for Reconsideration of the Board's decision of March 4, 2019. New and Material Evidence Left Ear Hearing Loss A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). During the current appeal, the RO reopened the previously denied claim for service connection for left ear hearing loss and denied the underlying claim for service connection for left ear hearing loss on the merits. However, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must initially determine on its own whether there is new and material evidence to reopen the claim before proceeding to the merits of the claim. The December 2007 rating decision continued the prior denial of service connection for left ear hearing loss on the basis that the claims folder contained no evidence of a current left ear hearing loss disability associated with the Veteran's service. The Veteran did not timely appeal that continued denial, which therefore became final. The pertinent evidence received since the December 2007 continued denial includes a March 2016 VA examination that revealed the Veteran has a diagnosis of left ear sensorineural hearing loss. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for left ear hearing loss. Thus, this claim is reopened. Service Connection Left Ear Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran seeks service connection for left ear hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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. A March 2016 VA audiological examination report indicates that the Veteran has left ear hearing loss for VA purposes. Further, the Veteran contends that his military occupation specialty (MOS) as a boatswain mate and cannon crewmember subjected him to noise exposure. The Board acknowledges that this MOS is commonly associated with hazardous noise exposure. As such, the remaining issue is whether the Veteran's current left ear hearing loss is related to his active service. Indeed, a March 2016 VA examiner opined against service connection based upon his conclusion that there was no recordable significant threshold shift that occurred in the hearing of the left ear while he was in the Navy or while he was in the Army National Guard. While the Board cannot ignore or disregard the VA examiner's medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, this opinion is clearly contradicted by the Veteran's service treatment records, which do show a significant shift in hearing acuity in his left ear from his April 1984 enlistment examination and throughout the Veteran's audiological examinations contained in his service treatment records. The Board acknowledges that the May 1988 separation examiner noted that the Veteran's hearing ranged from 5 25 decibels. Nonetheless, these records reflect that the Veteran's left ear hearing acuity worsened amongst most thresholds by five to fifteen decibels. See DD 216 Hearing Conservation Data, received on April 21, 2015. Such a shift is significant and indicates an in-service onset of the Veteran's left ear hearing loss symptoms of decreased hearing acuity. Thus, the March 2016 examiner failed to address the clear shift in hearing acuity during the Veteran's active service, as shown on his entrance and separation examinations. The opinion is inadequate, as it is contradicted by the facts in the record and does not contradict the Veteran's assertions that his bilateral hearing loss is related to service. In pursuant of this appeal, the Veteran has essentially asserted that he has experienced hearing impairment in his left ear since service. One role of the Board in adjudicating appeals is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board has no reason to doubt the credibility of the Veteran's lay statements that he currently experiences hearing loss in his left ear. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In affording any benefit of the doubt to the Veteran, the Board finds that he has been experiencing symptoms of left ear hearing loss since his active service. Accordingly, service connection for left ear (CONTINUED ON NEXT PAGE) hearing loss is warranted, as it is a current disability for which the symptoms onset during his active service. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.