Citation Nr: 21073773 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-40 869 DATE: December 10, 2021 ORDER New and material evidence HAS BEEN submitted sufficient to reopen a claim for service connection for bilateral hearing loss disability. Entitlement to service connection for a bilateral hearing loss disability is DENIED. FINDINGS OF FACT 1. A January 2012 decision denied the Veteran's claim for service connection for a bilateral hearing loss disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The March 2018 VA examination report, for the Veteran's entitlement claim for service connection for bilateral hearing loss, is neither cumulative nor repetitive of facts that were previously considered. 3. The weight of the evidence is against a finding that the Veteran's currently diagnosed bilateral hearing loss either began during, or was otherwise caused by, his U.S. Navy service. CONCLUSIONS OF LAW 1. The January 2012 rating decision that denied the Veteran's claim for service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. Following the January 2012 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran's claim for service connection for a bilateral hearing loss disability. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from February 1968 to July 1972. 1. New and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for bilateral hearing loss. In September 2011, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated a claim for service connection for a bilateral hearing loss disability. In September 2011, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured bilateral hearing loss. At that time, the examiner opined that the Veteran's demonstrated bilateral hearing loss was less likely than (less than 50 percent probability) caused by, or the result of, the Veteran's U.S. Navy service. In the supporting rationale, the examiner noted that the Veteran did not identify hearing loss until 2010, which is nearly three decades after U.S. Navy service. The examiner reported that the Veteran's demonstrated hearing loss could be attributed to the effects of the normal aging process. In January 2012, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ denied the Veteran's claim for service connection for a bilateral hearing loss disability. The AOJ denied service connection because there was no medical link between the Veteran's current hearing loss and his service in the U.S. Navy. In January 2012, the AOJ notified the Veteran that his claim for service connection for a bilateral hearing loss disability had been denied. The AOJ notified the Veteran that he had one year to appeal the denial, and it supplied VA Form 4107, "Your Rights to Appeal Our Decision." After deliberate review of the claims file, the Board observes that the Veteran did not submit new and material evidence during the one-year period following the AOJ's January 2012 rating decision and notification. Consequently, the January 2012 rating decision that denied the Veteran's claim for service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial decision on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156 (a) (2015). To warrant reopening, the new evidence must not be cumulative or 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. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a "low threshold" for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. In May 2018, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured bilateral hearing loss. The examiner reported a current bilateral hearing loss diagnosis and opined on the etiology for the demonstrated hearing deficits. In May 2018, the AOJ issued a rating decision. Therein, the AOJ confirmed and continued the previous final denial for service connection for a bilateral hearing loss disability. The AOJ relayed that, "evidence shows that you currently have hearing loss for VA purposes, but service connection cannot be granted without a medical link between your hearing loss and military service." The AOJ relayed that new and material evidence had been received, and the Veteran's claim for service connection for bilateral hearing loss was now considered reopened. Notwithstanding the AOJ's finding that new and material evidence has been received, the Board must independently determine whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of this claim. See 38 U.S.C. § 7104 (b); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board concludes that, since the finalized January 2012 rating decision, new and material evidence has been added to the record. Specifically, the May 2018 VA examination report addresses the etiology of the Veteran's current bilateral hearing loss disorder. Accordingly, the Veteran's claim for service connection for a bilateral hearing loss disability is reopened. 2. Entitlement to service connection for a bilateral hearing loss disability is denied. In March 2018, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran renewed his claim for service connection for a bilateral hearing loss disability. Generally, direct service connection will be granted if the evidence demonstrates that a current disability resulted from a disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To grant the Veteran's appeal, the Board must identify three requisite claim elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In addition to the above described VA regulations, entitlement to service connection for impaired hearing is subject to additional VA regulations. Specifically, a hearing impairment constitutes a disability for VA purposes when 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. 38 C.F.R. § 3.385. In November 2017, a notation was generated at the Legacy Medical Group Northwest. At that time, a provider noted that the Veteran demonstrated ear pain and hearing loss. After review of the accompanying medical records, the Board notes that no provider opined on the etiology of the noted hearing loss. In May 2018, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured bilateral hearing loss. At that time, the Veteran demonstrated the following audiometric values: HERTZ MAY '18 500 1000 2000 3000 4000 RIGHT 15 20 35 50 60 LEFT 25 30 35 50 55 Additionally, the Veteran demonstrated 96 percent right ear speech discrimination, and 100 percent left ear. The VA examiner conceded that the Veteran's military occupational specialty (MOS), and service in the Republic of Vietnam, had a high probability of noise exposure. However, the examiner opined that the Veteran's demonstrated bilateral hearing loss was less likely than not (less than 50 percent probability) caused by, or the result of, the Veteran's U.S. Navy service. In the supporting rationale, the examiner noted that the Veteran did not report, or show complaints, of hearing loss until he was tested by the VA in 2010, which is nearly three decades after the Veteran's service in the U.S. Navy. The Board notes that the Veteran demonstrated a current bilateral hearing loss disorder during the May 2018 VA examination. The Board also notes that the VA examiner conceded hazardous noise exposure because of the Veteran's MOS and service in the Republic of Vietnam. The Board has reviewed the Department of Defense's Duty MOS Noise Exposure listing, and notes that it does not specifically address a Combat Information Center Officer's noise exposure. Nevertheless, the Board also concedes that the Veteran endured hazardous noise while performing his MOS duties in the Republic of Vietnam. Consequently, the first and second requisite elements for service connection have been substantiate. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a). During the claim period, the Veteran's government and non-government medical records have been associated with the claims file on multiple occasions. Therein, notations were entered that identified a current hearing deficit endured by the Veteran. After deliberate review, however, the Board observes that no competent medical provider discussed or identified the etiology of the Veteran's current hearing deficit. Moreover, the May 2018 VA examiner opined that the Veteran's demonstrated bilateral hearing loss was less likely than not (less than 50 percent probability) caused by, or the result of, the Veteran's U.S. Navy service. Consequently, the Board finds that the third requisite element for service connection has not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a bilateral hearing loss disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a bilateral hearing loss disability must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.