Citation Nr: 21074119 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-35 084 DATE: December 14, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Entitlement to service connection for bilateral hearing loss was denied in a March 2014 final rating decision. Evidence received since March 2014 relates to an unestablished fact necessary to substantiate the claim. 2. Affording the Veteran the benefit of the doubt, he has a diagnosis of bilateral hearing loss that began during his active duty service. CONCLUSIONS OF LAW 1. The March 2014 rating decision is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to December 1973, and from February 1975 to February 1979, with additional service in the Army Reserve. This case comes to the Board of Veterans' Appeals (Board) from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office. In November 2021, the Veteran attended a Board hearing before the undersigned Veterans Law Judge. The Veteran contends that he has bilateral hearing loss which was caused by severe noise exposure during his active duty service. The Veteran has written that during service, he served on aircraft carriers, where it was constantly very noisy. He also wrote that he worked as a boatmate, which involved grinding and chipping paint, and that he was exposed to noise from jet engines and a grenade explosion. The Veteran's claim for service connection for bilateral hearing loss was first denied in a June 1999 rating decision, which he did not appeal, and which is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. Entitlement to service connection for bilateral hearing loss was again denied in a June 2006 rating decision. The Veteran submitted a Notice of Disagreement in August 2006, and a Statement of the Case was issued in May 2008. The Veteran did not submit a Form 9 Substantive Appeal for this issue, and the June 2006 rating decision also became final. The Veteran submitted a new claim for service connection for hearing loss in May 2013, and the claim was again denied in March 2014. The claim was denied because there was no evidence showing that the Veteran had a current hearing loss disorder which met the criteria of a disability for VA purposes. The appellant was notified of that decision, but did not submit a timely Notice of Disagreement with that decision, and it is final. Id. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). Since the last final decision in March 2014, the appellant has submitted an October 2017 private audiological evaluation which shows that he has both right and left ear hearing loss which is of the severity that is consider a disability for VA purposes. 38 C.F.R. § 3.385. This evidence is both new and material, as it does relate to an element necessary to substantiate the claim. The claim may therefore be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board also finds after reviewing the evidence of record and affording the Veteran the benefit of the doubt, entitlement to service connection for bilateral hearing loss can be granted. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") 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). Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As was discussed above, the Veteran submitted an October 2017 private audiological evaluation which shows that he has right and left ear hearing loss which is of the severity that is consider a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran's service treatment records do show evidence of bilateral hearing loss in service. The Veteran's February 1975 examination for transitioning from the Army Reserve to the Navy shows that he was given a diagnosis of bilateral high frequency hearing loss. His hearing thresholds in the left ear show significant threshold shifts since his from his June 1973 and November 1973 examinations, and his hearing levels in the left ear do meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385, due to a finding of 35 decibels at 4000 Hertz. The February 1977 separation examination shows similar hearing levels, including the finding of 35 decibels at 4000 Hertz. The Veteran's right ear did not show such distinct increases in hearing impairment, but do show shifts in hearing thresholds at 500, 1000, 3000, 4000, and 6000 Hertz from the prior findings at the examinations in 1973. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, can be granted service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In this case, the Veteran was diagnosed with bilateral high frequency hearing loss in service. His hearing thresholds in his left ear meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385. While his recorded right ear hearing levels do not appear to meet the criteria under 38 C.F.R. § 3.385, the Board nonetheless accepts that he was diagnosed with bilateral hearing loss at that time, and therefore finds that he did have bilateral hearing loss in service. The Board also affords the Veteran the benefit of the doubt and does not find that the February 1975 examination constitutes a finding of a preexisting hearing loss disability, as this examination was held so soon after his prior period of active duty service, at which he had no hearing loss disability, and due to the lack of any indication that the Veteran suffered any acoustic trauma from non-military sources during the time between his periods of active duty, and outside of his Army Reserve service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Board therefore affords the Veteran the benefit of the doubt and accepts that the Veteran has a current diagnosis of bilateral hearing loss, which is a chronic disorder, and which began during his active duty service. The claim of entitlement to service connection for bilateral hearing loss is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.