Citation Nr: 21072813 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-33 778 DATE: December 6, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for right ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed September 2006 rating decision, the RO denied service connection for right ear hearing loss on the basis that there was an absence of objective medical evidence showing the hearing loss in the right ear was related to military noise exposure; evidence received since the September 2006 rating decision relates to the unestablished fact of a nexus of right ear hearing loss to service, which is necessary to substantiate a claim for service connection. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran's right ear hearing loss is related to conceded acoustic trauma during his period of military service. CONCLUSIONS OF LAW 1. The September 2006 rating decision denying service connection for right ear hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the September 2006 rating decision is new and material to reopen service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from May 1971 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence having been received, the petition to reopen service connection for right ear hearing loss is granted. Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a September 2006 rating decision, the RO denied service connection for right ear hearing loss on the basis that there was an absence of objective medical evidence showing hearing loss in the right ear that is related to military noise exposure. Because the Veteran did not submit a Notice of Disagreement (NOD), and no additional evidence was received within one year of the notice of the rating decision, the September 2006 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the September 2006 rating decision, additional evidence has been received in the form of VA treatment records, a January 2017 VA examination report, and lay statements, which is new evidence because it has not been previously submitted. Evidence received since the September 2006 rating decision includes the Veteran's lay statements in a December 2016 Statement in Support of Claim, in which the Veteran stated that part of his duties as a production clerk was to log aircraft hours and maintenance, which required him to spend time on the flight line as the planes were taking off and landing. The Veteran also stated that he was exposed to excessive aircraft noise without being provided with hearing protection. The Board finds that such evidence relates to an unestablished fact of a nexus to service, so could reasonably substantiate a claim for service connection for right ear hearing loss. As such, the Board finds that the additional evidence is new and material to reopen service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for right ear hearing loss is granted. The Veteran contends that his currently diagnosed right ear hearing loss was caused by his exposure to excessive noise while working on the flight line during service. See December 2016 VA 21-4138 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hearing loss, are presumed to have been incurred in service, if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding the first element of service connection, current disability, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. However, "when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Importantly, as noted in the March 2017 rating decision on appeal, the Veteran has bilateral hearing loss for VA purposes. See also January 2017 VA examination. Additionally, as the Veteran is already service connected for left ear hearing loss, in-service noise exposure is conceded. Thus, the question becomes whether his diagnosed right ear hearing loss is related to his conceded in-service noise exposure. Notably, the Veteran is already service connected for left ear hearing loss and tinnitus related to this in-service noise exposure. After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is in at least approximate balance as to whether the Veteran's current right ear hearing loss is related to service. The unfavorable evidence consists of service treatment records, which are entirely negative for hearing complaints. The Veteran underwent a VA examination in January 2017. After examining the Veteran and reviewing the record, the examiner opined that it is less likely than not that the Veteran's right ear hearing loss is related to his service. In support thereof the examiner reasoned that the Veteran's hearing assessment at enlistment compared to his hearing assessment at separation revealed no significant hearing threshold and that the STRs are silent for any complaints, diagnosis of, or treatment for hearing loss in the right ear while on active duty. The examiner noted the Veteran's reports of exposure to aircraft engines during service. The examiner also noted the Veteran's reports that he was not exposed to excessively loud noises after service; however, the examiner noted that the Veteran was a fireman post-service. However, the record also contains favorable evidence. In a November 2016 treatment note from Dr. D.D. Following an audiological examination, he diagnosed bilateral sensorineural hearing loss secondary to noise-induced loss. Dr. D.D. noted that the Veteran worked around loud noise exposure for many years in the Navy which most likely has contributed to his high-frequency hearing loss and tinnitus. The Board finds that the opinion of the private physician supports the finding that the Veteran's right ear hearing loss was caused by in-service exposure to acoustic trauma. The Board finds the evidence is at least in equipoise. The Board is satisfied that the Veteran's right ear hearing loss cannot be clearly disassociated from his military service. As the Veteran is already service connected for left ear hearing loss and tinnitus as a result of his conceded noise exposure in service, and Dr. D.D. indicated that his bilateral hearing loss is secondary to his acoustic trauma in service, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for right ear hearing loss. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating for left ear hearing loss is remanded. The Veteran is seeking a compensable disability rating for his left ear hearing loss. In light of the grant of service connection for right ear hearing loss herein, the Board finds that it would be premature to adjudicate the claim for a compensable disability rating for left ear hearing loss without reconsideration of the issue by the AOJ. Bernard v. Brown, 4 Vet. App. 384 (1993). In other words, evaluation of the Veteran's left ear hearing loss is inextricably intertwined with that of his now service-connected right ear hearing loss. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the left ear hearing loss increased rating issue cannot be adjudicated until the AOJ effectuates the grant of service connection for right ear hearing loss and assigns the initial evaluation. The matter is REMANDED for the following action: 1. Assign an initial rating and effective date for the now service-connected right ear hearing loss disability with consideration of the rating for the already service-connected left ear hearing loss. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.