Citation Nr: 21006830 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-36 032A DATE: February 5, 2021 ORDER The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. By a final decision entered in December 2013, the Board of Veterans’ Appeals (Board) denied service connection for bilateral hearing loss; the Board found that there was credible evidence of in-service noise exposure and a current disability, but no probative medical evidence that the Veteran’s hearing loss was related to service. 2. New evidence received since the time of the Board’s decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for bilateral hearing loss and raises a possibility of substantiating the claim. 3. The Veteran has a current bilateral hearing loss disability; it is at least as likely as not that his hearing loss can be attributed, at least in part, to in-service noise exposure. CONCLUSIONS OF LAW 1. The Board’s December 2013 decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1966 to July 1968. His decorations include the Vietnam Service Medal and the National Defense Service Medal. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board notes that the Veteran had requested a hearing before the Board. However, in written September 2020 correspondence, the Veteran withdrew his request for a hearing. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for hearing loss. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured following a prior final denial of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means 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. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). A claimant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the evidence reflects that the Board denied the Veteran’s claim for service connection for bilateral hearing loss by a decision entered in December 2013. Following review of the evidence as it then existed, the Board found that there was credible evidence of in-service noise exposure, and a current hearing loss disability, but that there was not probative medical evidence that the Veteran’s hearing loss was related to service. The Veteran was advised of the Board’s December 2013 decision and of his appellate rights. However, he did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), or request reconsideration. As a result, the Board’s decision became, and remained, final. 38 U.S.C. §§ 7252, 7266; 38 C.F.R. § 20.1100. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C. § 7104(b); Barnett v. Brown, 83 F.3d 1380, 1382 (Fed. Cir. 1996). The evidence before the Board at the time of the December 2013 decision included the Veteran’s service treatment records, post-service treatment records, the report of an August 2010 VA examination, hearing testimony, and lay statements from the Veteran. The VA examination showed a hearing loss disability as defined in 38 C.F.R. § 3.385. The examiner opined that it was less likely than not that the Veteran’s hearing loss was related to service. Since that final decision, the evidence received includes additional treatment records, additional statements from the Veteran in support of his claim, new medical literature, and a new VA examination in August 2018. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Specifically, the Board finds that the new medical literature raises a reasonable possibility of substantiating the claim. The Veteran’s representative cited a recent report in audiology literature indicating that noise exposure at an early age results in hearing loss that is typically not evident on routine audiologic testing at that time and only becomes evident when unmasked by the aging process. In addition, the Veteran provided further details concerning his circumstances of service and his belief that the same mortar attack led to his hearing loss and service-connected tinnitus. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. The claim for service connection for bilateral hearing loss is reopened. 2. Service connection for bilateral hearing loss The Veteran seeks to establish service connection for bilateral hearing loss. He contends that his hearing loss is due to exposure to acoustic trauma during service, specifically explosions and artillery fire during the Tet Offensive. He has stated that he has suffered from hearing loss since service. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these 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. Here, there is no dispute that the Veteran has a current bilateral hearing loss disability as defined by VA. The report of an August 2018 audiometric examination clearly reflects, among other things, that he has auditory thresholds in excess of 40 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, bilaterally. The exam also reflects speech recognition scores using the Maryland CNC test of 74 percent in the right ear and 80 percent in the left ear. Nor is there any dispute that the Veteran had an in-service injury consisting of exposure to hazardous noise during service. He has reported exposure to hazardous noise during the Tet Offensive, including mortar fire and rocket attacks. He is also already service connected for tinnitus based on the same acoustic trauma experienced in service. As to the nexus, or link, between the Veteran’s current disability and service, the Board notes, as an initial matter, that he is competent to provide statements with respect to the onset and presence of diminished hearing, inasmuch as such symptoms are observable by a lay person. The Board finds, moreover, that his statements with respect to having experienced hearing loss since service are credible. The Board notes that the August 2018 VA examiner offered a negative opinion. The examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by or a result of an event in military service. The examiner conceded noise exposure in service, but found that there was no noise injury in service. In support of this assertion, the examiner generally noted that the Veteran’s enlistment and separation examinations, and cited the Institute of Medicine (IOM) report titled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” (2006) for the proposition that delayed onset hearing loss is an unlikely phenomenon. The examiner noted that although the Veteran involvement in the Tet Offensive carried a high probability of exposure to noise, including firing artillery and close proximity to mortar blasts without hearing protection, the audiometric test results from the Veteran’s service enlistment and separation examinations were normal and showed “no permanent positive threshold shifts greater than normal measurement variability noted in either ear” and that even after converting results to current ISO-ANSI measurements, “the configuration of this shift [in hearing was] not consistent with acoustic trauma.” The Veteran’s service treatment records (STRs) contain a February 1966 enlistment examination setting out the following audiometric results (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT -5 10 0 -5 -5 LEFT -10 -5 -5 -5 -5 The report of the Veteran’s June 1968 separation examination also contains the results of audiometric testing: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 - 10 LEFT 10 0 0 - 10 It is unclear from the face of these reports whether the puretone thresholds were recorded using ASA (American Standards Association) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. For service department examinations conducted prior to January 1, 1967, unless otherwise indicated, the Board ordinarily assumes that audiometric testing was conducted using ASA measurements and converts the results of such testing to current ISO-ANSI measurements by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 Add 15 15 10 10 10 5 10 10 Applying this conversion to the audiometric data in the report of the Veteran’s February 1966 entrance examination yields the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 5 0 LEFT 5 5 5 5 0 For service department examinations conducted between January 1, 1967 and December 31, 1971, unless otherwise indicated, the Board ordinarily considers the data under both ASA and ISO-ANSI standards, applying the same conversion. Applying the conversion to the audiometric data in the report of the Veteran’s June 1968 separation examination yields these results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 - 15 LEFT 25 10 10 - 15 Significantly, the United States Court of Appeals for Veterans Claims has noted that the threshold for normal hearing is from 0 to 20 decibels, and that thresholds above 20 decibels are indicative of at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Given the conversion, it appears the August 2018 examiner’s opinion was based on an inaccurate factual premise; namely, that the Veteran’s hearing was within normal limits at the time of his June 1968 separation examination. The Board finds the August 2018 medical opinion to be inadequate. In addition to relying on an inaccurate factual premise, the examiner heavily relied on the IOM report that is ultimately inconclusive as to the issue of delayed onset hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Moreover, the absence of a hearing loss disability in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, the proper inquiry is whether the Veteran’s current hearing loss is related to his conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). As such, the examiner’s opinion is of limited probative value. Inasmuch as hearing loss is recognized as a chronic disease, it can be service connected on the basis of continuity of symptomatology alone. See, e.g., Walker, supra. Taking into account the totality of the evidence including the Veteran’s conceded in-service noise exposure, the Veteran’s assertion of continuity of symptomology, and evidence of some degree of hearing loss during service, Board is persuaded that the criteria for an award of service connection for hearing loss have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Service connection for bilateral hearing loss is granted. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, Law Clerk 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.