Citation Nr: 21074634 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-20 242 DATE: December 15, 2021 ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a hearing loss disability, left ear; and if so, whether the claim should be granted. 2. Entitlement to an initial compensable rating for a hearing loss disability, right ear. ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for a hearing loss disability, left ear, and to that extent, the appeal is granted. Entitlement to service connection for a hearing loss disability, left ear, is granted. REMANDED Entitlement to an initial compensable rating for a hearing loss disability, right ear, is remanded. FINDINGS OF FACT 1. In an unappealed July 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a hearing loss disability, right and left ear. 2. Assuming its credibility, additional evidence received since the July 2008 rating decision, namely the Veteran's August 2021 Board Hearing testimony, VA treatment records, May 2018 VA examination, August 2019 VA examination, and September 2021 VA examination relate to evidence that is not cumulative or redundant, relate to an unestablished fact necessary to substantiate the claim, and as such raise a reasonable possibility of substantiating the claim. 3. The evidence is at least in equipoise as to whether the Veteran's hearing loss disability, left ear, is related to his active service. CONCLUSIONS OF LAW 1. The July 2008 rating decision denying entitlement to service connection for a hearing loss disability, left ear, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Since the July 2008 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a hearing loss disability, left ear; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a hearing loss disability, left ear, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from November 1965 to November 1967. This case comes before the Board of Veterans' Appeals (the Board) from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of that proceeding has been associated with the claims file. This matter was previously denied in a July 2008 rating decision. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369 ; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly as noted under issues above. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board.to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a hearing loss disability, left ear, and to that extent, the appeal is granted. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing 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 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. 38 C.F.R. § 3.156 (a). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran's original claim for entitlement to service connection for a hearing loss disability was denied in a July 2008 rating decision. The reason for the denial was that there was no nexus connecting the Veteran's hearing loss disability with the Veteran's service. The Veteran did not file an appeal of the decision or submit new and material evidence within one year of notification. Therefore, that decision became final. 38 U.S.C. § 4005 (c); 38 C.F.R. §§ 3.104, 19.118, 19.153. In, October 2017 the Veteran filed a petition to reopen his claim of entitlement to service connection for a hearing loss disability of his bilateral ears. The RO reopened the Veteran's claim of entitlement to service connection for a hearing loss disability of the Veteran's bilateral ears, and granted entitlement service connection for a hearing loss disability, right ear, but denied entitlement to service connection for a hearing loss disability, left ear. The Veteran was afforded a VA examination in May 2018, August 2019, and September 2021. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. Since the July 2008 rating decision, the record contains the Veteran's August 2021 Board Hearing testimony, additional VA treatment records, and May 2018, August 2019, and September 2021 VA examinations. VA examinations and hearing testimony all indicate acoustic trauma in service, ongoing issues with hearing loss, and worsening of symptoms. Moreover, the record now contains a May 2018 positive nexus opinion with rationale regarding the hearing loss of the right ear, which was not of record before. The Board finds that evidence is new because the existing evidence was not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Second, this evidence is material because by itself, or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Based on the foregoing, the Board finds that the newly submitted evidence described above, is both new and material. Having submitted new and material evidence, the Veteran's claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Entitlement to service connection for a hearing loss disability, left ear, is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims (Court) held that "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." In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); see Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Proof of a current disability is a threshold to establishing service-connection for a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Veteran contends that exposure to loud noise during active service, especially during service in his military occupational specialty as a heavy vehicle driver, caused his current bilateral hearing loss disability. The Veteran testified that he was exposed to acoustic trauma while driving the heavy vehicles and trucks and that he was sometimes also exposed to the noise of artillery as he drove to the front lines by the Cambodian border. The Veteran testified that he was not given proper audio protection. See August 2021 hearing testimony. The RO has conceded the Veteran's acoustic trauma in service and the Board agrees. The Veteran's acoustic trauma via exposure to heavy vehicles in service is consistent with his service as his DD214 shows he was a heavy vehicle driver specialist. The Veteran credibly testified before the undersigned VLJ that he has experienced issues with hearing loss and ringing in his ears since service, and that he felt he had hearing loss since service. The Veteran was granted service connection for right ear hearing loss in a May 2018 Board decision, and as such, this discussion and analysis focuses on the remaining left ear hearing loss claim. Having found an in-service occurrence with acoustic trauma in service, the Board turns to the Veteran's current left ear hearing loss disability. The evidence of record demonstrates that the Veteran has a current left ear hearing loss disability that comports with VA's definition of disability resulting from hearing impairment. For 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 of 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 of 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. The Board notes and emphasizes the regulation's use of the conjunctive term "or," meaning that satisfaction of any one of the three possibilities is sufficient to meet the requirements of 38 C.F.R. § 3.385 in establishing hearing impairment. In this case, the Veteran underwent multiple VA audiology examinations and the Board notes that every VA examination established left ear hearing loss for VA purposes. At the May 2008 VA examination puretone threshold values for the left ear at 500 HZ, 1000 HZ, 2000 HZ, 3000 HZ, and 4000 HZ measured 125 dB, 30 dB, 60 dB, 55 dB, and 60 dB respectively. The Maryland CNC word list speech recognition score measured 76. At the May 20018 VA examination puretone threshold values for the left ear at 500 HZ, 1000 HZ, 2000 HZ, 3000 HZ, and 4000 HZ measured 45 dB, 65 dB, 75 dB, 80 dB, and 85 dB respectively. The Maryland CNC word list speech recognition score measured 72. At the August 2019 VA examination puretone threshold values for the left ear at 500 HZ, 1000 HZ, 2000 HZ, 3000 HZ, and 4000 HZ measured 45 dB, 55 dB, 65 dB, 70 dB, and 95 dB respectively. The Maryland CNC word list speech recognition score measured 52. Given the hearing loss of the left ear reported in the record as disabling for VA purposes, the requirement for a current disability for the left ear is met. Thus, this matter turns on the last remaining element of service connection, whether a link between the Veteran's current disability and his acoustic trauma in service exists. The Board notes the May 2018 VA examination and opinion. The VA examiner found that the Veteran's right ear hearing loss was at least as likely as not caused by or a result of an event in military service. The rationale provided included the following: "Entrance exam showed normal hearing. His separation audiogram shows no change for the frequencies tested by 3000 Hz and 6000 Hz were not tested. Veteran reports a decrease in hearing during active duty which is consistent with the Veteran's exposure to noise, the hearing loss noted on today's examination, as well as the hearing loss being beyond the normal progression for age; therefore the hearing loss is at least as likely as not related to military noise exposure/acoustic trauma." However, the VA examiner reported that regarding the etiology of the Veteran's left ear hearing disability an opinion could not be afforded without resorting to speculation. The examiner's rationale included the following: "The separation did not test for 3000 Hz or 6000 Hz and therefore we cannot determine if a threshold shift was present due to military exposure. The claimant was a supply truck driver and indicates that he was exposed to explosion noise while driving in the service." The Board acknowledges that while the VA examiner's opinions differ as to etiology as they regard to the right and left ears, the rationale provided are largely the same. The Board notes that a VA disability exists in both ears, 3000 Hz or 6000 Hz were not tested for both ears, and both ears were exposed to the same noise exposure in service. Given that the rationale for the grant of service connection of the right ear hearing loss disability also applies to the left ear hearing loss disability, the Board finds that, affording the Veteran the benefit of the doubt, a nexus exists between the Veteran's in-service acoustic trauma and current hearing loss disability of the left ear. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current left ear hearing loss is related to his military service. As the evidence in this case establishes the presence of left ear hearing loss disability, in-service noise exposure, and a nexus between the two, the Board finds that a grant of service connection is warranted. As such, the Board finds a grant of service connection for a left ear hearing loss disability is appropriate. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND Entitlement to an initial compensable rating for a hearing loss disability, right ear, is remanded. At the August 2021 hearing, the Veteran testified that his hearing has worsened since his last VA examination in May 2018. In fact, the Veteran testified that his hearing has worsened bilaterally, and the Board notes that his left ear is now service connected herein. At the August 2021 hearing the Veteran's wife also testified that his hearing loss symptoms have worsened. The Board notes that the Veteran and his wife are competent to report their observations and experiences of symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As there is evidence of worsening since the last examination, the Board finds that a remand is necessary to obtain a VA examination which assesses the current severity of the Veteran's bilateral hearing loss disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding and up to date VA treatment records. 2. Thereafter, schedule the Veteran for an audiometric examination by an appropriate clinician to determine the nature and current degree of severity of the Veteran's service-connected bilateral hearing loss disability. The audiometric testing results from the examination should be associated with the claims file. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions expressed. 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.