Citation Nr: 21068310 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 20-02 296 DATE: November 9, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A May 2010 rating decision denied the issue of entitlement to service connection for bilateral hearing loss; the Veteran did not appeal the decision and no new and material evidence was associated with the claims file within a year of notification of the decision. 2. Evidence received since the May 2010 rating decision that denied service connection for bilateral hearing loss is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his bilateral hearing loss is related to his service. CONCLUSIONS OF LAW 1. A May 2010 rating decision, which denied service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. The transcript of the hearing is not yet available. However, this appeal meets the criteria for VA's one-touch initiative program, and, as such, this decision is being prepared pursuant to such program in order to provide an immediate response to the Veteran after his hearing. A transcript of the hearing will be added to the Veteran's file later in the normal course of business. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by 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). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In the May 2010 rating decision, the RO denied the Veteran's claim to service connection for bilateral hearing loss based on a finding that the record did not demonstrate that his condition was caused by military noise exposure. The Veteran did not file a notice of disagreement with the May 2010 rating decision and no new and material evidence was received within a year of notification of the decision. Therefore, the May 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond, 659 F.3d at 1367. In November 2018, the Veteran submitted a claim to reopen. In the January 2019 rating decision on appeal, the RO denied the Veteran's claim to service connection for bilateral hearing loss on the merits, implying the RO reopened the Veteran's claim. The Board also finds that new and material evidence has been received sufficient to reopen the Veteran's claim to entitlement to service connection for bilateral hearing loss. In that regard, the new evidence that was associated with the claims file includes an August 2018 private medical opinion. The private physician opined that the Veteran's bilateral hearing loss was most likely caused by his military service. See August 2018 private medical opinion. This evidence is new in that it was not previously considered by the RO or associated with the claims file. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim, a link between his bilateral hearing loss and military service. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for bilateral hearing loss. See 38 C.F.R. § 3.156(a). Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss, as related to in-service noise exposure. See November 2018 VA 21-526. Specifically, the Veteran asserts he was exposed to hazardous noise due to his military occupational specialty (MOS) as a radio tele-type operator, constant noise from headphones, generators, and weapons fire during service. See February 2010 VA treatment records; February 2010 statement in support of claim; and August 2018 private medical opinion. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish 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, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, to include organic diseases of the nervous system such as hearing loss, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). A hearing loss disability for VA purposes means that 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 are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran initially underwent a VA audiological examination in April 2010, at which time it was demonstrated that he had a bilateral hearing loss disability for VA compensation purposes. See April 2010 VA examination. Specifically, the Veteran had auditory thresholds of 30 dB at 2000 Hz, 60 dB at 3000 Hz, for both ears. Id. At 4000 Hz, the Veteran demonstrated 70 dB for the left ear and 65 dB for the right ear. Id. Therefore, the first element of service connection has been established. See Shedden, 381 F.3d at 1167. With respect to an in-service injury, event, or disease, the Veteran has consistently asserted and testified that he was exposed to noise from headphones, generators, and weapons fire. See April 2010 and December 2018 VA examinations; February 2010 statement in support of claim; August 2018 private medical opinion. Additionally, the Veteran testified that he had trouble hearing once he had the noise exposure in service. The Veteran is competent to describe his in-service noise exposure. See Washington v. Nicholson, 19 Vet. App. 363, 369 (2005). Therefore, the Board finds that the second Shedden element of an in-service injury, consisting of acoustic trauma, has been met. See Shedden, 381 F.3d at 1167. With respect to the third element of service connection, the Veteran reported longstanding buzzing/tingling sensation and deteriorating hearing in February 2010. See February 2010 VA treatment records. The Veteran also reported that right after he got out of service (a few years after), he had a physical and was told that he had hearing loss. Id. The Veteran's October 1962 separation examination appears to indicate some degree of hearing loss. Specially, audiological testing results show minus 5 dB at 1000 and 2000 Hz for the right ear, and minus 5 dB at 500, 1000, and 2000 Hz for the left ear. See October 1962 separation examination. An April 1964 audiological testing shows the Veteran had hearing loss of 30 dB at 4000 Hz in the right ear, and 25 dB at 4000 Hz of the left ear indicating some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. at 157. Additionally, the Veteran testified that he had no hearing issues prior to entering service; experienced trouble hearing while in service; and that his hearing has worsened over the years. As noted, the Veteran was initially afforded a VA examination in April 2010. The VA examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by or the result of in-service noise exposure. See April 2010 VA examination. As rationale, the VA examiner noted the Veteran had a normal whisper voice test at induction into service and normal hearing bilaterally at separation from service. Id. The VA examiner noted the Institute of Medicine (IOM), in a 2005 study on military and noise exposure, stated that there was no scientific evidence to support delayed onset of noise induced hearing loss. Id. The Veteran was afforded a second VA examination in December 2018. The VA examiner conceded the Veteran's report of in-service noise exposure and noted the Veteran's MOS has a moderate probability of noise exposure. See December 2018 VA examination. The VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was the result of an in-service event. Id. As rationale, the VA examiner noted the Veteran's service treatment records were silent for hearing loss complaints. Id. The VA examiner noted the Veteran underwent a whisper hearing examination at enlistment and explained that they are not considered valid measurements of hearing because it is not frequency-specific and do not assess the higher frequencies. Id. The VA examiner noted the Veteran had normal hearing bilaterally at separation and reported onset of hearing loss was about 10 years prior to the examination, over 40 years after separating from service. Id. However, the VA examiner also noted that it was difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service because the whisper test is known to be inaccurate. Id. The VA examiner also noted that the IOM study concluded that there was no sufficient scientific basis for the existence of delayed-onset hearing loss, though it does not rule out delayed-onset might exist. Id. However, neither VA examiners addressed the Veteran's April 1964 audiological testing results indicating some degree of hearing loss two years after the Veteran's separation from service. The VA examiners also do not address the Veteran's lay statements that he experienced hearing trouble in service that has worsened over the years. Therefore, the Board finds the April 2010 and December 2018 VA examinations inadequate for decision making purposes as they rely on an inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In support of his claim, the Veteran provided an August 2018 private medical opinion. The private audiologist conducted an audiological examination and indicated review of the Veteran's medical records. See August 2018 private medical opinion. The private physician opined that it was most likely the Veteran's bilateral hearing loss was caused by the Veteran's military service. Id. As rationale, the private physician noted that sound levels of some generators reach over 85 dB and stated that a Noise Hazard Evaluation conducted by the U.S. Army Environmental Hygiene Agency determined that areas or operations will be designated as noise hazardous when an individual is exposed to steady noise levels above 85 dB regardless of the length of exposure. Id. The private physician also noted that the maximum permissible level of any impact noise at the ear is 140 dB and impulse noise level of a rifle is 157 dB which exceeds the maximum level. Id. The private physician concluded that the exposure to generator noise and rifle fire without the use of hearing protection could cause bilateral hearing loss and the Veteran's military medical records revealed a decline in hearing thresholds while he was in service. Id. As such, the Board finds that the August 2018 private medical opinion is adequate for decision making purposes and entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302. In sum, the Board finds that there is adequate medical evidence that the Veteran's bilateral hearing loss is at least as likely as not related to his active duty service. Therefore, in consideration of all the evidence in this case, and with resolution of any doubt in the Veteran's favor, the Board finds that service connection for the Veteran's bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.