Citation Nr: 21076034 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-15 359 DATE: December 22, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a bilateral hearing loss disability. Entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to an effective date prior to April 24, 2019, for the assignment of a 100 percent rating for an acquired psychiatric disorder is remanded. Entitlement to an effective date prior to March 5, 2019, for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A March 2017 rating decision denied service connection for hearing loss; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence received since the March 2017 rating decision for service connection for bilateral hearing loss is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. The evidence is at least evenly balanced as to whether the Veteran currently has bilateral hearing loss related to military noise exposure. CONCLUSIONS OF LAW 1. The March 2017 rating decision that denied the claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the March 2017 denial of service connection for bilateral hearing loss; therefore, service connection for bilateral hearing loss is considered reopened. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§1131, 5107; 38C.F.R. §§3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to October 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a virtual hearing before the undersigned Veterans Law Judge in January 2021. 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App.110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the March 2017 rating decision, the RO denied service connection for bilateral hearing loss because there was no evidence of record establishing a link between the Veteran's current hearing loss and his military service. Evidence received since the 2017 rating decision includes a July 2018 VA audiological examination and a January 2021 Board Hearing Transcript. This evidence is new because it was not previously submitted to agency decisionmakers at the time of the March 2017 rating decision. The evidence is also material because it relates to an unestablished fact necessary to substantiate the claimin this case, a nexus between the Veteran's current hearing loss and service. Specifically, in his January 2021 Board hearing, the Veteran provided additional information about his military noise exposure and history of hearing loss symptoms. He reported that he first noticed hearing loss in service and experienced continuous symptoms since that time up until the present. The Veteran also reported that he did not have any non-military noise exposure sources. See January 2021 Board Hearing Transcript. Further, although the July 2018 VA audiologist rendered a negative nexus opinion, she also stated that the Veteran's history was negative for post-service occupational or recreational noise exposure or a family history of hearing loss, which taken together with the evidence from the Board hearing, raises a reasonable possibility of substantiating the claim. In sum, the additionally received evidence includes reports about symptoms originating with in-service noise exposure and documents a negative history for post-service occupational and recreational noise exposure. Thus, the newly received evidence relates to the basis of the prior denial and the Board considers it to be new and material. Reopening of the service connection claim for bilateral hearing loss is therefore warranted. 2. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. §3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), which includes hearing loss, as an organic disease of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For hearing loss, the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection, nor does normal hearing shown on audiometric testing at separation bar service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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. Under VA law, when no pre-existing medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Critical to determining whether a defect, infirmity, or disorder has been "noted" is whether the condition is "recorded" in an examination report. 38 C.F.R. § 3.304(b). In McKinney v. McDonald, the United States Court of Appeals for Veterans Claims (Court) found that pre-existing hearing loss is "noted" upon entry into service if the entrance auditory examination shows hearing loss that rises to the level of a disability under VA law. See McKinney v. McDonald, 28 Vet. App. 15, 23-24 (2016) (conversely, hearing loss not meeting VA's definition is not a "defect, infirmity, or disorder" and thus, veterans are entitled to the presumption of soundness when abnormal hearing, not indicative of a hearing loss disability under 38 C.F.R. § 3.385 is noted on the report of medical examination upon entry into service.) The Veteran contends that his bilateral hearing loss is due to hazardous noise exposure while on active duty. For the reasons described below, the Board finds that service connection for bilateral hearing loss is warranted. Initially, the Board notes that although the November 1979 entrance audiological examination reflects pure tone threshold readings of 55 decibels for the right ear and 60 decibels for the left ear at the 6000 Hertz frequency, hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385 was not shown at entrance. Therefore, the Veteran is presumed sound at entrance onto active duty. See McKinney, 28 Vet. App. at 29 (holding that hearing loss noted at entrance that is not severe enough to be defined as a disability under § 3.385 is not a "defect" under 38 U.S.C. § 1111, and thus the presumption of soundness applies). The Veteran is currently diagnosed with a bilateral hearing loss disability for VA compensation purposes as evidenced by a July 2018 VA examination; thereby establishing the current disability element of the service connection claim. See 38 C.F.R. §3.385. Regarding an in-service incurrence, the Veteran reports exposure to hazardous noise while on active duty. He notes that he served as an aircraft mechanic on C-130 airplanes with massive propellers that were very loud. He states that he was exposed to continuous jet engine noise, explaining that even when parked, the C-130's engine was still running. The Veteran also reported firing weapons at the range during basic training. See January 2021 Board Hearing Transcript. Personnel records reflect that the Veteran's military occupational specialty (MOS) was an aircraft mechanic and show that he obtained his rifle marksmanship badge and attended a turbo propeller mechanics course. See DD Form 214. The Veteran is competent to report exposure to loud noise and his personnel records support his statements regarding the circumstances of his noise exposure. As such, the Board concedes in-service noise exposure. Further, although not sufficient to constitute a hearing loss disability under 38 C.F.R. §3.385, the service treatment records (STRs) show shifts in pure tone thresholds from entrance to separation in the right and left ear in the frequency range of 500 to 4000 Hertz (Hz) and document some degree of left ear hearing loss at separation from service. Specifically, on the November 1979 entrance audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 5 10 LEFT 15 10 10 5 10 On the July 1984 separation audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 10 LEFT 25 20 15 15 15 A comparison between the Veteran's November 1979 enlistment examination and his July 1984 separation examination, reflect shifts in pure tone thresholds, including, in the right ear, from 10 to 15 decibels (dB) in the frequencies of 500 Hz and 1000 Hz; and from 5 to 10 dB at the 2000 Hz frequency. In the left ear, pure tone thresholds shifted from 15 to 25 dB at 500 Hz, from 10 to 20 dB at the 1000 Hz frequency, and from 5 to 15 dB at 3000 Hz. The Board notes that threshold levels higher than 20 decibels indicate some degree of hearing loss, (see Hensley, 5 Vet. App. at 157), thus, based on the 500 Hz reading on the July 1984 separation examination, the Veteran developed some degree of left ear hearing loss in service. In general, the audiometric hearing results from the July 1984 separation examination appear worse than the audiometric hearing results from the November 1979 enlistment examination. As to the lay evidence, decreased hearing is readily observable, and the Veteran is competent to report about his history of noise exposure and hearing impairment. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran asserts that his hearing impairment symptoms started with military noise exposure and progressed to the current hearing loss disability. See January 2021 Board Hearing Transcript. As noted above, STRs reflect slight shifts in hearing thresholds from entrance to separation from service and document some degree of left ear hearing loss at separation. Further, in-service noise exposure has been conceded and there is no other report of post-service noise exposure to suggest an alternative cause for the current hearing loss. In fact, the July 2018 VA audiologist noted that the Veteran's history was negative for occupational or recreational noise exposure, family history of hearing loss and other otologic problems. Given this background, the Board finds the Veteran's statement regarding the onset of hearing impairment symptoms in service which continued since that time to be credible and entitled to probative weight. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence). The conflicting evidence consists of January 2017 and July 2018 VA audiology medical opinions. However, these medical opinions are flawed because the rationales are based primarily on the lack of a significant threshold shift in service. The Board notes that a lack of an in-service threshold shift is not necessarily fatal to a service connection claim for hearing loss. See generally Hensley, 5 Vet. App. at 155. With this limitation, the Board attaches limited probative weight to the medical opinions of record. In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an effective date prior to April 24, 2019 for the assignment of a 100 percent rating for an acquired psychiatric disorder is remanded. In a September 2018 rating decision (RD), the AOJ granted a 70 percent evaluation for an acquired psychiatric disorder, effective July 9, 2018. The Veteran submitted a timely Notice of Disagreement (NOD) in March 2019. In a May 2019 rating decision, the AOJ increased the Veteran's rating for his acquired psychiatric disorder to 100 percent, effective April 24, 2019. Despite the timely NOD, and the fact that the May 2019 RD represents only a partial grant of the benefit sought on appeal, a Statement of the Case (SOC) has not yet been issued. As such, a remand is required for the AOJ to issue a SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). 2. Entitlement to an effective date prior to March 5, 2019 for the assignment of a TDIU is remanded. In a January 2019 rating decision, the AOJ denied the Veteran's claim for a TDIU. In March 2019, the Veteran submitted a timely NOD. In a May 2019 rating decision, the AOJ granted a TDIU, effective March 5, 2019. Despite the timely NOD, and the fact that the grant of TDIU, effective March 5, 2019, represents only a partial grant of the benefit sought on appeal, a SOC has not yet been issued. As such, a remand is required for the AOJ to issue a SOC. See Manlincon, 12 Vet. App. at 240. (Continued on the next page) The matters are REMANDED for the following action: Furnish the Veteran with a statement of the case that addresses the issues of entitlement to an effective date prior to April 24, 2019, for the assignment of a 100 percent rating for an acquired psychiatric disorder, and the issue of entitlement to an effective date prior to March 5, 2019 for the award of a TDIU. If, and only if, the Veteran perfects an appeal with respect to these issues, the AOJ must ensure that all indicated development is completed before the case is returned to the Board. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, Associate 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.