Citation Nr: 21022754 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-15 839 DATE: April 19, 2021 ORDER Application to reopen a claim of 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 March 2002 rating decision most recently denied the Veteran’s claim of service connection for bilateral hearing loss; he did not appeal that decision, he did not thereafter submit new and material evidence within the one-year appeal period, and VA did not subsequently obtain and associate with the claim’s file VA treatment records generated within the one-year appeal period. 2. Evidence received since the March 2002 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss, and it raises a reasonable possibility of substantiating the claim. 3. Bilateral hearing loss had its’ onset in service. CONCLUSIONS OF LAW 1. The March 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for bilateral hearing loss is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1967 to April 1970 with service in the Republic of Vietnam from November 1968 to April 1970. The Veteran and his wife testified before the undersigned during a November 2019 Board of Veterans’ Appeal (Board) hearing. A transcript of the hearing is of record. The Application to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. 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 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, No. 2019-1992 (August 19, 2020), the Court removed the sufficient knowledge of the existence of the VA records requirement in Turner. With the above criteria in mind, the record shows that a March 2002 rating decision earlier denied the Veteran’s application to reopen his claim of service connection for bilateral hearing loss. The decision denied his claim because, in substance, there was no evidence showing that the post-service disability was due to his military service. The Veteran did not appeal the March 2002 rating decision. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of March 2002 rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the March 2002 rating decision. See Turner, supra; Lang, supra. Accordingly, the Board finds that March 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final March 2002 rating decision, the Veteran was afforded a personal hearing in November 2019 at which time the appellant and his wife competently and credibly testified about the appellant having observable symptoms of bilateral hearing loss due to acoustic trauma (mortar round explosions and fun fire) while stationed in the Republic of Vietnam while on active duty. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Additionally, in December 2019 VA received from the Veteran’s doctor an opinion in which he linked the appellant’s current bilateral hearing loss to his military service. Therefore, because a nexus between a current disability and military service is a condition precedent for establish service connection (see 38 C.F.R. § 3.303) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that the November 2019 personal hearing testimony and the December 2019 medical opinion are new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. The Service Connection Claim The Veteran asserts, in substance, that service connection is warranted for his bilateral hearing loss because it was caused by his military service, including the acoustic trauma while stationed in the Republic of Vietnam. Specifically, during a November 2019 Board hearing the Veteran testified being a cook in the field while serving in the Republic of Vietnam and during this time being exposed to mortar round explosion and gun fire. The Veteran’s wife testified first noticing the Veteran’s hearing loss in April 1970 when he returned from Vietnam. The Veteran’s wife observed the Veteran not responding to her when talking to him and the Veteran asking what when she asks if he heard her. The Veteran notes family members including his father observing the Veteran’s hearing loss. The Veteran’s family notified the Veteran of their observations and expressed to him the need of a hearing test. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that “audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley, 5 Vet. App. at 157. The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the record shows the Veteran being diagnosed with bilateral hearing loss as defined by VA. See, e.g., VA examination dated in September 2012. Moreover, the Veteran’s DD 214 shows he served in the Republic of Vietnam from November 1968 to April 1970. In addition, the Board finds that the Veteran is both competent and credible to report on what he experiences while on active duty, including being exposed mortar round explosion and gun fire while in the field as a cook while serving in the Republic of Vietnam. See Davidsons, supra. Given this record, the Board finds that the evidence, both positive and negative, as to whether the Veteran had an in-service injury is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had an in-service injury (i.e., acoustic trauma) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Further, the Board finds that the Veteran and his wife, who was married to him while he was on active duty, are both competent to report, in substance, that the appellant had observable problem with difficulty hearing in his ears since service and that these accounts of his having this problem since that time is credible. See Davidson, supra; Owens, supra. Additionally, and as noted above, in December 2019 VA received from the Veteran’s doctor an opinion in which he linked the appellant’s current bilateral hearing loss to his military service. On the other hand, the September 2012 VA examiner opined that the Veteran’s bilateral hearing loss was not due to his military service. However, because symptoms of hearing loss in and since service are observable by a lay person, because the examiner did not appear to consider the Veteran’s military service included exposure to mortar round explosion and gun fire while in the field as a cook while serving in the Republic of Vietnam, and because the examiner did not consider the competent and credible lay claims of observable adverse symptomatology since service, the Board finds that the VA examiner’s negative etiology opinion is not credible. See Madden v. Gober, 125 F.3d. 1477, 481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators”). Therefore, the Board finds that the most probative evidence of record is the Veteran’s and his wife’s personal hearing testimony as well as the appellant’s doctor’s opinion in which he linked the appellant’s current bilateral hearing loss to his military service. See Owens, supra. Accordingly, with affording the Veteran the benefit of the doubt, the Board concludes that his current bilateral hearing loss is due to his military service and service connection is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, Attorney Advisor 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.