Citation Nr: 21074886 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-16 082 DATE: December 16, 2021 ORDER Petition to reopen entitlement to service connection for a left middle finger disability is denied. Based on the receipt of new and material evidence, the petition to reopen entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. By a final January 2008 decision of the Board of Veterans' Appeals (Board), the Veteran's claim of entitlement to service connection for a left middle finger disability was denied. Evidence received since then is cumulative, redundant, or does not raise a reasonable possibility of substantiating the claim for service connection. 2. The Veteran's claim seeking entitlement to service connection for bilateral hearing loss was previously disallowed in a final June 2015 rating decision. Evidence received since then is new and material and raises a reasonable possibility of substantiating the claim for service connection. 3. The most probative evidence establishes that the Veteran's current bilateral hearing loss is etiologically related to his significant in-service noise exposure. CONCLUSIONS OF LAW 1. The January 2008 Board decision denying entitlement to service connection for a left middle finger disability is final. 38 U.S.C. §§ 7104(b) (2018), 7105 (2018), 7266(a); 38 C.F.R. § 20.1100. 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a left middle finger disability has not been received. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a). 3. The June 2015 rating decision denying entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302), 20.1103. 4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss has been received; the claim is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a). 5. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to November 1971. These matters come before the Board on appeal from a June 2018 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an August 2021 Travel Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. New and Material Evidence If a claim of entitlement to 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 (2018). New evidence means existing 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Petition to reopen entitlement to service connection for a left middle finger disability is denied. The Veteran's claim seeking entitlement to service connection for a left middle finger disability was last denied in a January 2008 Board decision. All Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 1100. The Veteran did not appeal the decision to the United States Court of Appeals for Veterans Claims (Court) within 120 days from the date of mailing of that decision. 38 U.S.C. § 7266(a). Accordingly, the January 2008 Board decision is final. The Veteran filed the most recent application to reopen the claim in May 2018. Much of the evidence received since the final January 2008 Board decision is duplicative or cumulative of evidence already reviewed by VA at the time of the last final decision. Updated VA treatment records have been received, but they do not document a left middle finger disability beyond what was previously of record in January 2008. In a September 2017 VA treatment record, the Veteran told a nurse that "he hurt his left finger when in the Army. His 3rd digit [was] reaggravated." The lay statement is presumed credible for the purposes of examining the petition to reopen, see Justus, supra, but is merely redundant of the contentions addressed the January 2008 Board decision. In lay testimony provided at the August 2021 Board hearing and in written statements received in May 2018, June 2019, and April 2020, the Veteran argued that his preexisting left middle finger was aggravated during a June 1969 pugil stick injury. He argued the records from the injury mistakenly referenced the left index finger instead of the left middle finger, and he cited to an in-service orthopedic referral document which stated "old versus new fracture middle finger left hand" as evidence of in-service aggravation. These same arguments were presented to and addressed in the January 2008 Board decision. At that time, the Board explained that it was assigning more evidentiary weight to the clinical records showing an in-service injury to the left index finger than a referral document referencing the left middle finger, particularly when no such orthopedic referral was ever conducted. Accordingly, this lay testimony is redundant and cumulative of statements and arguments that were addressed and rejected in the January 2008 Board decision. The Board has considered application of 38 C.F.R. § 3.156(c) to this claim, as the electronic claims file contains additional service department records that were in existence at the time of the January 2008 Board decision, but had not been associated with the Veteran's claims file until later. Additional service personnel records were associated with the Veteran's electronic claims file in February 2015, and additional service treatment records were associated with the Veteran's electronic claims file in December 2018. These service department records are irrelevant to the Veteran's claim of entitlement to service connection for a left middle finger disability. Moreover, the Veteran's representative has not identified any evidence that would warrant reconsideration under 38 C.F.R. § 3.156(c). As such, the provisions of 38 C.F.R. § 3.156(c) are not for application. In sum, the evidence received since the final January 2008 Board decision denying entitlement to a left middle finger disability is not both new and material and does not raise a reasonable possibility of substantiating the claim. Instead, the Veteran is attempting to relitigate the same contentions by relying on cumulative and redundant evidence that was available, known, and addressed by the Board in the final January 2008 decision. Consequently, the petition to reopen entitlement to service connection for a left middle finger disability is denied. 2. Based on the receipt of new and material evidence, the petition to reopen entitlement to service connection for bilateral hearing loss is granted. The Veteran's claim seeking entitlement to service connection for bilateral hearing loss was last denied in a June 2015 rating decision. The July 2015 notification letter was sent to the Veteran's correct address of record at that time. Nothing further regarding the claim was received until May 2018. No new and material evidence or a Notice of Disagreement was received by VA within one year of the mailing of the June 2015 rating decision. See 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302). As the Veteran did not appeal the decision, that rating decision became final. See 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103. As discussed above, additional service treatment records that were in existence at the time of the June 2015 rating decision, but had not been associated with the Veteran's claims file at that time were received in December 2018. These records are irrelevant to the claim seeking entitlement to service connection for bilateral hearing loss because they pertain exclusively to the Veteran's National Guard service, unrelated to his period of active duty service. The Veteran has solely alleged entitlement to service connection based on noise exposure during his active duty service, and the Board is granting entitlement to service connection, infra, on this basis. Given the irrelevance of the additional service treatment records added to the claims file in December 2018, the claim shall not be reconsidered in accordance with 38 C.F.R. § 3.156(c), and the Board shall proceed with its new and material evidence analysis under 38 C.F.R. § 3.156(a). In the June 2015 rating decision, the Veteran's claim seeking entitlement to service connection for bilateral hearing loss was denied due to a lack of probative evidence linking the Veteran's bilateral hearing loss to his military service. Evidence received since then includes an October 2021 private medical nexus opinion which favorably links the Veteran's current bilateral hearing loss to his active duty service. This evidence is new, as it was not previously available (and thereby considered) in the prior final rating decision, and it is material, as it pertains to the unestablished fact of whether the Veteran experiences bilateral hearing loss etiologically related to his active duty service. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. Shade, 24 Vet. App. at 117-118. The RO reopened the claim and considered the merits in the February 2020 Statement of the Case, so the Board may do so as well. See Bernard v. Brown, 4 Vet. App. 384 (1993). 3. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks entitlement to service connection for bilateral hearing loss and alleges that this disability is the result of military noise exposure. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. The current disability element of a service connection claim is not in dispute. The Veteran experienced hearing loss for VA compensation purposes at a June 2015 VA examination and at an October 2021 private audiologist assessment. See 38 C.F.R. § 3.385. The current disability element of a service connection claim has been satisfied. Regarding in-service incurrence, the Veteran's service treatment records are negative for in-service hearing complaints or auditory acuity deficits. At the January 1969 military preinduction medical examination, the Veteran's ears were clinically normal. Audiometric testing showed right ear pure tone thresholds of 0, 0, 0, 0, 0, and 10 decibels at 500, 1,000, 2,000, 3,000, 4,000, and 6,000 hertz, respectively. Left ear pure tone thresholds were 0, 0, 0, 0, 0, and 25 decibels at the same tested frequencies, respectively. The veteran denied a history of hearing loss in the Report of Medical History. In August 1969, the Veteran again underwent audiometric testing in connection with a medical examination performed prior to Officer Candidates School. Audiometric testing showed right ear pure tone thresholds of 10, 10, 10, and 10 decibels at 500, 1,000, 2,000, and 4,000 hertz, respectively. Left ear pure tone thresholds were 15, 10, 10, and 10 decibels at the same tested frequencies, respectively. The veteran denied a history of hearing loss in the Report of Medical History. At his October 1971 military separation medical examination, the Veteran's ears were clinically normal. Audiometric testing showed right and left ear pure tone thresholds of 0, 0, 0, and 0 decibels at 500, 1,000, 2,000, and 4,000 hertz, respectively. In an August 2004 lay statement, the Veteran stated that his service in the Army included 8 months in field artillery, during which he was exposed to the constant shock and sound of artillery guns, to include 105mm and 155mm howitzers. He also claimed that during basic training he was hit in the head by a piece of shrapnel from an exploding M-16. He further asserted that it "knocked me semi-unconscious" and caused blood to drip from his left ear. He indicated that he was examined and told he was fine. There is no evidence in the service treatment records documenting such an injury. In the May 2019 Notice of Disagreement, the Veteran again alleged in-service noise exposure between 1969 and 1970 when he worked in field artillery. He indicated that he did not wear hearing protection because it was not a requirement at the time. The Veteran reiterated these contentions at his August 2021 Board hearing. The Veteran's service personnel records confirm the Veteran's lay reports of training at the U.S. Army Field Artillery Center in Ft. Sill, Oklahoma. Given the above referenced lay testimony/statements and the Veteran's service personnel records, the Board concedes that the Veteran experienced acoustic trauma during his active duty service sufficient to satisfy the in-service incurrence element of a direct service connection claim. Regarding medical nexus, the record contains several competing opinions. In October 2004, the Veteran submitted an August 2004 private medical opinion stating that the Veteran's hearing loss was related to his military service because exposure to firearms in the military was the Veteran's only history of significant noise exposure. In February 2005, the Veteran attended a VA audiological examination to assess the etiology of his claimed bilateral hearing loss disability. The Veteran's military noise exposure was fully documented by the VA examiner, who also noted no significant post-service noise exposure. Post-service, the Veteran was employed for many years as an accountant and computer programmer, without exposure to any loud noises. The Veteran reported slight noise exposure from a minimal amount of hunting, lawn mowing, snow blowing, and riding snowmobiles/all-terrain vehicles, without the use of hearing protection. He further stated that he wore hearing protection when using power tools. The VA examiner declined to link the Veteran's hearing loss to his active duty service because his in-service audiograms showed normal hearing. The Veteran attended an additional VA audiological examination in June 2015. The Veteran reported difficulty understanding speech in multiple listening situations, such as large rooms, groups, parking lots, and theaters. He stated that he could hear better when people were speaking directly in front of him. The VA examiner noted the Veteran's approximately 10 month exposure to daily artillery noise without hearing protection while in the military. The Veteran had no post-service occupational noise exposure, as he was employed as an accountant for 10 years and a computer programmer for 25 years. The Veteran again reported minimal recreational noise exposure through duck hunting and lawn mowing. The VA examiner explained that the Veteran's service treatment records did not show a significant threshold shift in either ear between service entrance and exit, and since there was no evidence of diminished hearing during the Veteran's active duty service, it was less likely than not that the Veteran's current hearing loss disability was due to in-service noise exposure. In October 2021, the Veteran submitted a private medical nexus opinion from an otolaryngologist. The physician noted the Veteran's accurate reports of intense artillery noise exposure during the military, without significant noise exposure following service. The physician noted no history of chronic ear infections or familial history of hearing loss. In light of this relevant history, the physician estimated that the Veteran's substantial in-service noise contributed to the Veteran's cumulative hearing loss over time. In evaluating evidence, the Board is charged with the duty to assess the credibility and weight given to the evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had an inherent fact-finding ability. See also 38 C.F.R. § 7104(a) (2018). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for its finding. Evans v. West, 12 Vet. App. 22, 30 (1998). As with all evidence, it is the responsibility of the Board to weigh conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board may favor the opinion of one competent medical expert over another as long as it articulates understandable and valid reasons for doing so. Parrish v. Shinseki, 24 Vet. App. 391 (2011). A review of the February 2005 and June 2015 VA medical opinions demonstrates that the VA examiners based their negative nexus opinions solely on the fact that the Veteran's service treatment records showed normal hearing without evidence of auditory threshold shifts between service entrance and exit. The Court has cautioned that a claim of entitlement to service connection for hearing loss may not be denied by the Board simply because normal hearing was demonstrated in the Veteran's service treatment records. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As such, the Board finds the VA examiners' opinions to be in contravention of the Court's holdings in Hensley and Ledford and not fully articulated and supported by a reasoned rationale. Nieves-Rodriguez, 22 Vet. App. at. 304. Instead, the Board places greater evidentiary weight on the August 2004 and October 2021 private medical opinions submitted by the Veteran in support of the claim. These physicians highlighted the intense amount of noise exposure that the Veteran experienced during his active duty service, without any major exposure to loud noise following service. The physicians explained that it was the Veteran's well-documented in-service artillery noise exposure that logically caused or contributed to the Veteran's current hearing loss disability. The Board finds that the private medical opinions are based on an accurate factual premise and are supported by a plausible explanatory rationale. As such, the Board affords significant probative value to these private medical opinions. In conclusion, the Veteran has a current bilateral hearing loss disability and an in-service noise event, and the most probative medical nexus evidence in the form of the August 2004 and October 2021 private medical opinions have competently linked the Veteran's bilateral hearing loss to such noise exposure. As the requisite elements of service connection have been established, the Veteran's appeal seeking entitlement to service connection for bilateral hearing loss is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.