Citation Nr: 21013063 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 20-01 292 DATE: March 8, 2021 ORDER New and material evidence having not been received, the petition to reopen the previous denial of service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. A March 2005 rating decision with notice of appellate rights denied service connection for bilateral hearing loss; there was no timely notice of disagreement, and new and material evidence was not received within the appeal period. 2. An April 2013 notice of denial and appellate rights denied service connection for bilateral hearing loss, but there was a timely notice of disagreement. 3. New evidence received since the March 2005 final denial is not material because it does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The prior denial of service connection for bilateral hearing loss in March 2005 was final, and the criteria to reopen the previously denied claim are not met. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1983 to January 1986. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision. However, because a statement of the case (SOC) was not issued in response to a December 2013 notice of disagreement (NOD) to an April 2013 denial of a petition to reopen, the April 2013 rating decision is the decision on appeal, as incorporated into the most recent SOC. In March 2020, the Board denied the Veteran’s petition to reopen the claim of service connection for bilateral hearing loss. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2020 Order, pursuant to a Joint Motion for Remand, the Court vacated and remanded that decision. 1. Petition to reopen the previous denial of service connection for hearing loss In general, legacy decisions of the agency of original jurisdiction (AOJ) that are not appealed within one year of notice of the decision are final. See 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A claim that had a final disallowance may only be reopened if new and material evidence is received. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A “claim should be reopened if, in light of the other evidence of record and further VA assistance, [the] newly submitted evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim.” Mitchell v. McDonald, 27 Vet. App. 431, 440 (2015). For the purpose of reopening, all new evidence is presumed credible unless it is inherently or patently not credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In this case, the AOJ denied the Veteran’s initial September 2004 claim of service connection for bilateral hearing loss in a March 2005 rating decision based on a finding that there was no nexus to service. The AOJ notified the Veteran of his appellate rights at that time. He did not initiate an appeal or submit additional evidence within the appeal period of one year from the decision notice to prevent the decision from becoming final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. In July 2012, the Veteran submitted a petition to reopen the prior denial. An April 2013 letter advised the Veteran of the denial and his appellate rights. In December 2013, he submitted a timely notice of disagreement (NOD) for all issues in the April 2013 rating decision, which was not addressed at the time. A March 2014 report of contact noted that the Veteran requested to reopen his claim for hearing loss. An October 2017 rating decision identified this report as a claim for reconsideration, and again denied the petition to reopen service connection for hearing loss. The Veteran then submitted another NOD, which led to this appeal. However, as the prior timely NOD was not addressed by an SOC, the April 2013 rating decision did not become final; it is that decision that remains on appeal. Evidence at the time of the March 2005 final denial included the Veteran’s claim identifying an onset and treatment of a “hearing condition” since January 1986 (or since his separation from service), his DD Form 214 showing duties as a combat signaler and no foreign service, service treatment records with no complaints or diagnosis, and post-service treatment records unrelated to hearing loss. During a January 2005 VA audiological examination, the Veteran reported military excessive noise exposure as a radio operator and airborne ranger from 1983 to 1986, stating that he was unable to wear ear protection at times, as well as post-service occupational exposure through construction work and running a tire business. The examiner’s report also noted that service audiometric examinations in 1982, 1984, and two examinations in 1985 showed normal hearing from 500 to 6000 Hertz bilaterally. During the VA examination, recorded pure tone thresholds were 45 decibels at 500 Hertz in the right ear and 40 decibels at 500 Hertz in the left ear, which meets the VA disability criteria in 38 C.F.R. § 3.385. Pure tones from 1000 to 4000 Hertz were 10 to 20 decibels in the right ear and 15 to 25 decibels in the left ear. Speech recognition scores were above 94 percent bilaterally. The examiner stated that the pure tone results showed mild sensorineural hearing loss at 250 and 500 Hertz only, with normal hearing from 1000 to 8000 Hertz in both ears, and word recognition scores were excellent. The examiner opined that the Veteran’s hearing loss was not likely related to his history of military noise exposure. The examiner reasoned that low frequency hearing loss is not typically related to noise exposure, and the etiology could not be determined. Since the last prior denial, new evidence includes VA treatment records with a complaint of current hearing loss in 2007. A March 2014 report of contact from the Veteran noted that be believed his hearing had gotten much worse. A current disability was already established at the time of the prior denial, and there is no suggested link to service. Therefore, these records are not material. Moreover, a May 2014 VA treatment record noted that the Veteran was known to have tinnitus, and he stated that he was getting worse. A July 2014 VA record then noted that the Veteran had no “hearing problems” on systems review. Tinnitus is a separate condition from hearing loss, and service connection is in effect for tinnitus. In December 2019, the Veteran (through his attorney) submitted a medical treatise article from the Journal of Otolaryngology, which he asserts directly contradicts the reasoning provided by the January 2005 VA examiner in finding no nexus. The October 2020 Joint Motion for Remand found that the Board did not address this argument in the prior denial, although the Board generally addressed the article. In December 2019, the Veteran’s attorney asserted that this article showed that chronic noise exposure can cause severe to profound sensorineural hearing loss in some individuals, meaning that there is a higher prevalence of sensorineural hearing loss among noise-exposed individuals than those not exposed to noise. In January 2021, and as noted in the October 2020 Joint Motion, the attorney made a more specific argument that this article stated that noise-induced hearing loss on average causes 40 decibels of hearing loss in lower frequencies. He asserted that this contradicts the VA examiner’s reasoning that there was no nexus to service because low frequency hearing loss is not typically related to noise exposure, and provides a possible link between military noise exposure and current hearing loss. “Interpretation of a medical treatise’s meaning and assessment of its probative value as evidence in support of the claim being adjudicated are within the purview of the Board as factfinder.” Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018). The Board must accurately portray the findings in treatise evidence relied on by a claimant and provide adequate reasons or bases for discounting or rejecting that potentially favorable evidence. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). If the treatise contains findings that support the claimant, as well as others that do not, the Board is obligated to address the potentially favorable aspects of the treatise and explain why those aspects of the evidence are persuasive or unpersuasive. See McCray v. Wilkie, 31 Vet. App. 243, 257-58 (2019). In this case, the Board agrees that the Journal article reflects generally that chronic noise exposure “can” or may cause sensorineural hearing loss in some individuals. However, this general proposition is already reflected in the January 2005 VA examiner’s opinion, which explains why the Veteran’s case in particular is not likely related to noise exposure based on the interpretation of the test results. Although the examiner did not cite to a specific medical article, the reasoning reflects application of medical expertise, and the examiner does not have a reasons and bases requirement. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Therefore, this portion of the treatise article does not contradict the 2005 VA examiner’s opinion or rationale. The Board disagrees with the Veteran’s other suggested interpretation of the article, or that it contradicts the 2005 VA examiner’s reasoning, because it does not reflect the full context of the passage from which the relevant language is taken. At page 3 out of 15, in discussing “Pure tone audiograms,” the Journal article first states that early or moderately advanced noise-induced hearing loss usually results in a typical “notch” at 4000 Hertz, with a spread to the neighboring frequencies of 3000 and 6000 Hertz, and some recovery at 8000 Hertz. The notch may disappear with aging because high frequencies are also typically affected by presbycusis. With further noise exposure, the notch can get deeper and wider, eventually involving lower frequencies such as 500 to 2000 Hertz. In other words, this explains that there would not typically be a “notch” or elevated pure tone threshold only at the 500 Hertz level with normal readings at other levels, as in this Veteran’s case. Instead, the “notch” or elevated pure tone thresholds would be present at 4000 Hertz and spread to the other higher and possibly lower frequencies, not just at 500 Hertz. This is consistent with the rationale given by the 2005 VA examiner. The Journal article continues in the next paragraph by stating that hearing loss induced by noise exposure is on average no greater than 75 decibels in the high frequencies and no greater than 40 decibels in the lower frequencies. However, chronic noise exposure can in some individuals cause severe to profound sensorineural hearing loss. In other words, this explains that on average pure tone thresholds are elevated but are 75 decibels or below in the higher frequencies, and they are 40 decibels or below in the lower frequencies, such as 500 to 2000 Hertz as noted earlier in the article. However, there can be higher thresholds in some individuals at these different levels, showing severe to profound hearing loss. In this case, the 2005 VA examiner specified that the Veteran had “mild” hearing loss at the lower frequencies of 250 and 500 Hertz with readings of 40 and 45 decibels, i.e., not “severe” hearing loss as noted in the Journal. There was also not “profound” hearing loss at any level for the Veteran’s test results in this case. Again, this information is consistent with the rationale given by the 2005 examiner. In addition to the portion referenced by the Veteran’s attorney, the Abstract Background for the article, at page 1 out of 15, states that noise-induced hearing loss is one of the most common forms of sensorineural hearing loss, and noise-induced damage to the cochlea is traditionally considered to be associated with symmetrical mild to moderate hearing loss with associated tinnitus. However, there are a significant number of individuals with asymmetrical thresholds and severe to profound hearing loss, depending on the exposure. The article makes similar points at page 2 under the Background narrative. In other words, these passages emphasize that “severe to profound” is a different pattern than “mild to moderate” hearing loss, and both may be caused by noise exposure. In this case, the 2005 VA examiner noted that the Veteran had tinnitus that was likely noise induced, but his he did not have “mild to moderate” hearing loss. Instead, the examiner stated that there was mild hearing loss with normal hearing at the levels at 1000 Hertz and higher. Therefore, the rationale and conclusion are again consistent with the article. The Veteran’s attorney has represented him for this appeal since 2015, and no other arguments have been made as to the Journal article or a medical opinion. The duty to assist is not triggered when the article is considered with the other evidence of record. Although it relates to an unestablished fact of an indication that there may be a nexus to service, it does not raise a reasonable possibility of substantiating the claim or trigger the need for a medical opinion. Accordingly, the new medical treatise evidence is not material. See 38 C.F.R. § 3.156; Shade and Mitchell, supra. New and material evidence having not been received, the previous denial of service connection for bilateral hearing loss is not reopened. The appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.