Citation Nr: 21072921 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-36 983 DATE: December 6, 2021 ORDER New and material evidence having been received within one year of the prior decision to sever service connection for right ear hearing loss, the issue remained open and pending. The severance of service connection for right ear hearing loss being improper, restoration of service connection is granted. The issue of service connection for right ear hearing loss is dismissed. FINDINGS OF FACT 1. New and material evidence was received within one year of the May 2015 rating decision severing service connection for right ear hearing loss, which means the original issue remained pending and did not become final. 2. There is not clear and unmistakable evidence that the Veteran's right ear hearing loss is not related to noise exposure in service. 3. As service connection has been restored, the issue of service connection for right ear hearing loss is moot. CONCLUSIONS OF LAW 1. Because evidence received within one year of the May 215 rating decision, which severed service connection for right ear hearing loss, was new and material, the issue of whether the severance of service connection was improper remained open and pending. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 2. The severance of service connection for right ear hearing loss was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 3. The issue of entitlement to service connection for right ear hearing loss is moot. 38 U.S.C. § 7105; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to December 1971. This appeal arises from May 2015 and November 2015 rating decisions. The Board previously remanded this matter in November 2019. The Board found that the RO must adjudicate the issue of whether new and material evidence has been submitted sufficient to prevent finality from attaching to the May 2015 rating decision severing service connection for right ear hearing loss. (The Board erroneously identified the standard as "new and relevant evidence." As the appeal arose under the Legacy appeal system, the correct standard was whether "new and material evidence" had been submitted. This discrepancy did not prejudice the Veteran, so is considered nonconsequential.) The Board noted that the Veteran in July 2015 submitted a list of military occupational specialties and the probability of hazardous noise exposure associated with each. Additionally, the Veteran had submitted the results of a June 2015 audiogram and a positive medical opinion from his private treatment provider, which related his bilateral hearing loss to his in-service noise exposure. Because this evidence was received within one year the May 2015 rating decision, the Board found that a determination was needed to address whether such evidence was "new and material evidence" that would prevent the adverse decision from becoming final under 38 C.F.R. § 3.156(b). See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Upon remand, the RO issued a supplemental statement of the case (SSOC) in April 2020 finding that new and material evidence had been submitted. The RO went on to find that the claim remained denied because the balance of the evidence remained negative as to whether there was a link between the diagnosis of right ear hearing loss and service. Regardless of the RO's positive finding as to the new and material evidence question, the Board must first determine that new and material evidence was submitted. See 38 U.S.C. § 7104(a); 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Elkins v. West, 12 Vet. App. 209, 218-19 (1999); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence was received within one year of the prior decision to sever service connection for right ear hearing loss By a May 2015 rating decision, the RO severed service connection for right ear hearing loss. The Veteran was notified of the decision that same day, which was mailed to the then current mailing address of record. In July 2015, the Veteran filed a VA 21-426EZ, Fully Developed Claim (Compensation), asking for "Hearing Loss Reconsideration." In response, the RO issued a rating decision in November 2015 finding that the previous denial of service connection for right ear hearing loss was "confirmed and continued." In March 2016, the Veteran filed a VA Form 21-095B, Notice of Disagreement. He identified the decisions with which he disagreed as two decisions issued in November 2015. (The Board notes that these were duplicate rating decisions addressing identical issues.) He identified the specific issue of disagreement as "[h]earing loss both ears," with the areas of disagreement being service connection and evaluation of disability. The RO issued a statement of the case (SOC) in June 2017 addressing the issue of service connection for right ear hearing loss. The instant appeal followed. The finality of the May 2015 rating decision is at issue because the Veteran in July 2015 filed a June 2015 medical opinion from a private (non-VA) audiologist relating the Veteran's hearing loss to in-service noise exposure. The private audiologist opined that the Veteran's hearing loss was at least as likely as not a result of noise exposure in service. The Board now finds that it is new and material evidence submitted within one year of the May 2015 rating decision. The Board finds that this evidence is "new" because it was not before the adjudicator in May 2015. The Board also finds that the new evidence is "material" because it relates to whether a right ear hearing loss was the result of injury during service, which was the reason service connection was severed in the May 2015 rating decision. The Board accordingly finds that new and material evidence was received within one year of the May 2015 rating decision. Hence, the issue did not become final and has remained pending up to present. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015). 2. Whether the severance of service connection for right ear hearing loss was proper The next question is whether the severance of service connection was proper. The Board is mindful that the RO has not expressly adjudicated this issue in an SOC or supplemental statement of the case (SSOC). However, it was implicitly denied in the adjudicatory decisions on appeal to the extent it is reasonably clear that the RO's decisions were intended to dispose of the severance issue. See Adams v. Shinseki, 568 F.3d 956, 964 (Fed. Cir. 2009). Moreover, as the outcome of this appeal is entirely favorable, the Board finds there is no prejudice to the Veteran is proceeding to a final decision on the merits. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). A. Applicable Law Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE), with the burden of proof being on VA. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. B. Discussion Here, the question before the Board in this case is whether the grant of service connection for right ear hearing loss was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because there is conflicting, but not clear and unmistakable, evidence that the Veteran's right ear hearing loss is related to service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. In this case, there is no material dispute that the Veteran has a right ear hearing loss under § 3.385. At an April 2011 VA examination, his right ear hearing acuity was measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 60 60 Speech recognition scores were 96 percent right ear. Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies a hearing loss for VA purposes was first established. See 38 C.F.R. § 3.385. There is also no material dispute that the Veteran was exposed to noise during service. The Veteran, in his original claim, stated that he was exposed to noise while training in Korea on .50 caliber and .30 caliber machine guns for base security. The Veteran's DD 214 shows that he was a cook during service, including in Korea. The service personnel records (SPRs) do not show qualification on .50 caliber or .30 caliber machine guns, but show he was qualified on the M-16 rifle, M-14 rifle, and hand grenades. The November 2013 rating decision, which granted service connection for bilateral hearing loss, did not explicitly find the Veteran had noise exposure in service. However, as this was the basis of the claim, such a favorable finding was implied. Since that time, there has been no evidence to contradict this finding, nor was this the reason for the severance. On this basis, the Veteran's exposure to acoustic trauma is considered established. Tending to support a nexus between the current hearing loss and the in-service noise exposure, the private audiologist in June 2015 opined that the Veteran's hearing loss was at least as likely as not related to noise exposure in service. The audiologist noted that the Veteran served and experienced noise exposure when proper hearing protection was not always available. Also favorable is a February 2011 VA examination opinion. The examiner opined that the Veteran's bilateral hearing loss was at least as likely as not due to service. The examiner reasoned that due to no audiometric testing in the field to review, and in-service noise exposure, acoustic trauma must be considered as occurring during the Veteran's service. In April 2011, this same VA examiner opined that the Veteran's hearing loss was less likely than not due to service. The examiner reasoned that based on audiometric testing revealing hearing within normal limits at separation, acoustic trauma must be considered as not occurring while in service. The same VA examiner gave a third opinion in July 2014. The VA examiner opined that the right ear hearing loss was not at least as likely as not caused by or a result of service. The examiner gave as rationale that based on hearing within normal limits at induction and separation, plus audiometric examination with no significant threshold shifts, the previous service-connected hearing loss disability was in error. In short, there is both positive evidence supporting a nexus and negative evidence against a nexus. Overall, the Board can identify no compelling reason to find the VA examiner's negative opinions more probative than the private audiologist's positive opinion on the nexus element. Both considered the same facts, which led them to different conclusions. Therefore, based on the current evidence of record, this disagreement must be considered a professional difference of opinion between equally qualified medical experts. In fact, the conflicting opinions present a reasonable disagreement as to the nexus question, and reasonable minds could disagree as to the ultimate determination. However, this determination, at this point, amounts to no more than a disagreement as to how to weigh the probative value of the conflicting opinions. In context of a severance case, this disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. Accordingly, the severance of service connection was improper, service connection is restored, and the appeal is granted. 3. Service connection for right ear hearing loss The Board herein above finds that the severance of service connection for right ear hearing loss was improper. (Continued on the next page) The effect of this decision means that service connection has remained in effect since originally granted. See, e.g., Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007). This in turn means that the issue of service connection for right ear hearing loss is moot. The appeal as to this issue is accordingly dismissed. David Jimerfield Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.