Citation Nr: 21074673 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-08 310 DATE: December 16, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. An October 2013 rating decision denied entitlement to service connection for bilateral hearing loss; the Veteran did not timely appeal this denial, and no new and material evidence was submitted within the one-year appeal period following the issuance of that decision. 2. Evidence received after the expiration of the original appeal period is not cumulative and redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The evidence of record is at least in equipoise regarding whether the Veteran's diagnosed bilateral hearing loss disability is etiologically related to acoustic trauma sustained in service. CONCLUSIONS OF LAW 1. The October 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for bilateral hearing loss, based on receipt of new and material evidence, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of that hearing has been associated with the record. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "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. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Veteran is seeking to reopen his claim of entitlement to service connection for bilateral hearing loss. This claim was originally denied in an October 2013 rating decision wherein the RO found that the Veteran had bilateral hearing loss for VA purposes but that the disability was not related to his military service. The Veteran did not perfect a timely appeal as to the rating decision, nor did he submit new and material evidence within one year; therefore, the rating decision became final. In May 2016, the Veteran submitted a request to reopen his claim. The July 2016 rating decision on appeal reopened, and denied, the claim. Regardless of whether the RO has determined that new and material evidence has been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd, 8 Vet. App. 1 (1995)). Evidence associated with the record since the final October 2013 rating decision includes the report of a March 2016 VA audiological examination, with an addendum report, each of which opine on the etiology of the Veteran's bilateral hearing loss. These opinions are new because they were not of record at the time of the prior final rating decision, and are considered material in that they raise a reasonable possibility of substantiating the hearing loss claim on appeal. Thus, the Board finds that new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss. The claim is reopened, and the merits of the claim will be addressed supra. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. The Veteran asserts that he has a bilateral hearing loss disability resulting from the hazardous combat noise he was exposed to while on active duty. A review of his military personnel records shows that his military occupational specialty was infantryman. The Veteran testified in January 2021 that he was a machine gunner who fired his weapon without hearing protection. He also testified that he was exposed to artillery explosions, and the intentional detonation of an ammunition storage dump by the enemy in April 1969. The Board finds that the reported exposure to hazardous noise is consistent with the facts and circumstances of the Veteran's active service. Accordingly, the Board concedes that the Veteran sustained acoustic trauma during active service. (Parenthetically, it notes that the Veteran has been granted service connection for tinnitus based on this same noise exposure.) Service treatment records are silent for complaints of, or treatment for bilateral hearing loss disability while the Veteran was in active service. However, the Veteran is competent to report, as he testified in January 2021, that he first experienced symptoms of bilateral hearing loss disability in active service and that the symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran, whose statements have been consistent throughout the appeal period, to be credible in that respect. The record includes conflicting medical opinions concerning whether the Veteran's bilateral hearing loss is etiologically related to his active-duty service. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). That is, the Board decides in the first instance which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In the March 2016 VA opinion, the audiologist determined that the Veteran's bilateral hearing loss was at least as likely as not due to his in-service noise exposure. In support of this conclusion, he explained that review of the Veteran's file showed that he was exposed to hazardous noise levels while in service, and that testing at the present time showed that he likely had a significant threshold shift beyond normal variability and progression while in service. The evidence "clearly and convincingly" showed an in-service hearing injury. Based on likely hazardous noise exposure and current testing, the examiner concluded that the Veteran's hearing loss was at least as likely as not caused by, or a result of, noise exposure in service. Later that month, the same VA audiologist had the chance to review audiological testing results from the Veteran's enlistment and separation, which were unavailable at the time of his initial opinion. Based on those results, the examiner determined it was less likely than not that the Veteran's hearing loss was related to service. The examiner noted that his previous concession as to hazardous noise exposure was correct, but that there was no resulting "noise injury." He acknowledged the apparent contradiction in such a conclusion, but indicated that it was not possible to predict how noise exposure would effect individuals. Without a threshold shift in service, any hearing loss experienced after service is less likely than not due to such. He explained that delayed onset hearing loss due to noise exposure was unlikely to occur. The Board acknowledges that both opinions, in favor of and against the claim, were drafted by the same VA audiologist prior to, and after, review of the Veteran's enlistment and separation examinations. The Board also notes that the examiner, in reversing his initial opinion, did not explain how he could conclude that testing showed a history of in-service hazardous noise exposure significant enough to cause hearing loss later in life, but then wholly contradict himself and conclude that it did not, in fact, cause such disability in this case. However, the Board finds that each opinion stands on its own, as the conclusions reachedwhen read separatelyare both supported by arguably adequate rationale. Although the VA examiner changed his mind following review of the Veteran's service treatment records, the Board finds that the fact pattern described in his initial, positive opinionthat the Veteran experienced in-service acoustic traumamore closely represents the Veteran's competent and credible reports of exposure to gunfire, explosions and an exploding ammunition dump while in service. In addition, and as noted above, the Veteran has been granted service connection for tinnitus based on conceded in-service acoustic trauma. Accordingly, the evidence is at least in equipoise that the Veteran's bilateral hearing loss is etiologically related to his military noise exposure. Therefore, by resolving all reasonable doubt in his favor, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.