Citation Nr: 21016025 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 18-46 077 DATE: March 19, 2021 ORDER As new and material evidence has been submitted, the claim 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. A February 2005 rating decision denied the Veteran's claim for bilateral hearing loss. The Veteran did not appeal the rating decision and new and material evidence was not received within the appellate period; thus, the decision became final. 2. Since the final February 2005 denial, evidence related to an unestablished fact or that raises reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for bilateral hearing loss has been received. 3. The Veteran's bilateral hearing loss had its onset in and is related to service CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 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 with the United States Navy from September 1969 to January 1970; February 1973, to May 1979; June 1979, to September 1982; November 1982, to December 1985; December 1985, to July 1990; and August 1990, to August 1999. The Veteran presented sworn testimony at a hearing before the undersigned in March 2021. 1. New and material Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented as to that claim. 38 U.S.C. § 5108 (2012). The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim "must be read as creating a low threshold." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Id. at 118. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran previously submitted a claim of entitlement to service connection for bilateral hearing loss, which was denied in a February 2005 rating decision on the basis that the Veteran did not have hearing loss for VA purposes. The February 2005 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, he submitted additional VA treatment records and VA provided him an audiological examination based on the new records. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Service Connection The Veteran contends that his bilateral hearing loss began in service as a result of his duties as a submariner where he was subjected to continuous noise and acoustic trauma. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Here, the evidence of record indicates that the Veteran currently has bilateral hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. In addition, the Board finds his reports regarding in-service exposure to loud noise are competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, this appeal turns on whether there is a nexus between the Veteran's hearing loss and his active military service. The Board acknowledges that the June 2017 VA examiner opined that the Veteran's current bilateral hearing loss is not related to service because of the lack of evidence of hearing loss in service, but affords no probative value to the opinion as it does not address the competent, lay evidence of hearing loss since service. The Veteran testified at the March 2021 hearing the he experienced loud noises and acoustic trauma during service and his hearing acuity has declined since. Thus, the Veteran has established a continuity of symptomatology with his credible lay statements and service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.