Citation Nr: 21016024 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-32 840 DATE: March 19, 2021 ORDER The application to reopen the claim of service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran had active duty service from July 1964 to June 1967. 2. In an unappealed March 2014 rating decision, the Regional Office (RO) denied service connection for bilateral hearing loss. 3. The evidence submitted since the March 2014 decision reflected continuous symptoms since service, as well as private medical records stating in-service audiological trauma was his only otologic history. 4. Bilateral hearing loss has been continuous since service. CONCLUSIONS OF LAW 1. The March 2014 RO rating decision, which denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the March 2014 rating decision is new and material; the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. Bilateral hearing loss was incurred during service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In a March 2014 rating decision, the RO denied the Veteran’s claim for service connection for lack of a medical nexus linking bilateral hearing loss to service. The Veteran filed a May 2014 notice of disagreement (NOD), and the RO subsequently issued a November 2014 Statement of the Case (SOC). However, the Veteran did not file a substantive appeal Form 9 either 60 days after the issuance of the SOC or a year following the March 2014 rating decision, abandoning the appeal. No new and material evidence was submitted during this year that would prevent the rating decision from becoming final. As such, the March 2014 rating decision was the final adjudication of the issue of service connection for bilateral hearing loss. Next, new evidence has been submitted since the prior final decision. Specifically, new VA treatment records contained audiology consults. Additionally, the Veteran gave testimony before the Board describing for the first time how his hearing loss began during service. Finally, in January 202,1 he submitted private medical record showing that his only history of noise exposure was during service. Service connection was denied in the prior final rating decision due to lack of a medical nexus. While the private medical record does not contain a fully composed medical nexus opinion, the finding that the Veteran’s only significant noise exposure was during service is related to the medical nexus element of the claim. Similarly, the testimony provided by the Veteran that his hearing loss began in service, goes to the issue of continuity of symptomatology which is an alternative avenue for hearing loss to warrant service connection as a chronic disease. As such, new and material evidence relating to an unestablished element of the claim has been submitted since the prior final rating decision, the application to reopen the claim of service connection for bilateral hearing loss is warranted, and the appeal, to this extent, is granted. Service Connection Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, hearing loss was noted in a March 2014 VA examination. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) 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. Testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 40 105 105 105 LEFT 15 30 90 105+ 105 Speech discrimination scores were 36 percent in the right ear and 38 percent in the left ear. Therefore, hearing loss is currently shown. Reports of his symptoms are also well-documented throughout VA treatment records. Thus, the first element of service connection – a current diagnosis – has been met. Next, the evidence supports a finding of in-service acoustic trauma. The Veteran stated during that examination, and at various points throughout the appeal period, that he had noise exposure using M15 rifles, machine guns, grenades, diesel engines, and pneumatic tools. He has consistently stated that he was not given ear protection during any of these activities. A veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran’s statements are consistent with the nature of his service. His DD-214 showed he worked as a heavy vehicle driver and had an expert rifle designation. Finally, there is no evidence of record which tends to contradict the Veteran’s testimony. As such, the second element of service connection has been met. As to continuity, the Veteran stated at various points that his hearing was caused by noise exposure during service. In both February 2016 and July 2016 NODs, he stated that he had become a recluse because of his hearing problems after the Army. The February 2016 NOD in particular, he stated he had been a recluse since his time in service because of hearing problems. This tends to support a showing of continuous symptoms as it seems he was impacted by his hearing loss symptoms directly after service, rather than years later. During the October 2020 Board hearing, he much more clearly stated that he noticed hearing problems in service and that his hearing was worse when he got out prior to his post-service jobs, some of which may have exposed him to further auditory trauma. As such, while there is an absence of documented complaints or treatment for hearing loss for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board notes that a March 2014 VA examination determined that the Veteran’s hearing loss had not been caused by service; however, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of hearing loss since service rather than on direct service connection. Additionally, the VA examiner found that there was a separation examination which showed essentially normal hearing, but that no auditory threshold data could be found for the time of enlistment. The enlistment audiogram is of record, and as such was not considered by the examiner in making their determination. Further, there is no evidence in the examination report that the examiner asked the Veteran about the date of onset of his hearing symptoms, yet the VA examiner relied on a study regarding delayed onset hearing loss. As such, this would limit the probative value of the opinion if assigning weight was necessary. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss since service; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.