Citation Nr: 21023312 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-32 817 DATE: April 20, 2021 ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. In a July 2010 rating decision, the Veteran's service connection claim for bilateral hearing loss was denied and he did not appeal this determination or submit medical evidence within one year of its issuance. 2. Evidence received since the July 2010 rating decision is new and material regarding the issues of service connection for bilateral hearing loss, as it contains evidence not previously considered that has some tendency to establish a link between the disability claims on appeal and the Veteran's military service. 3. Resolving all doubt in the Veteran's favor, bilateral hearing loss is related to service. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the Veteran's previously denied claims of service connection for bilateral hearing loss has been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hearing loss have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1965 to October 1967. He was awarded the Vietnam Service Medal with two Bronze Service Stars and Vietnam Campaign Medal, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has not yet been associated with the electronic claims file. However, given the favorable outcome that this decision represents (a full grant of the issues on appeal) the Board finds no prejudice in deciding the claim. Further, a full explanation of how VA has fulfilled the duties to notify and assist is not necessary given the full grant this decision represents. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. New and Material Evidence. The Veteran seeks service connection for bilateral hearing loss. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claims of service connection for bilateral hearing loss. The claim was initially considered and denied by the RO in a July 2010 rating decision. The Veteran did not file a notice of disagreement with the decision, and no medical evidence was submitted within one year of the issuance of the decision. Accordingly, the July 2010 rating decision became final. The Veteran then filed to reopen the claim for bilateral hearing loss in May 2017. Since the July 2010 rating decision, additional evidence has been received in the form of a July 2017 VA examination and statements from the Veteran. The VA examinations and statements from the Veteran are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the Veteran has a current disability. Specifically, the July 2017 VA examination confirmed hearing loss pursuant to 38 C.F.R. § 3.385. When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claims; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 2. Service Connection for Bilateral Hearing Loss The Veteran contends that service connection is warranted for bilateral hearing loss. After review of the evidence, both lay and medical, the Board agrees and finds that service connection for bilateral hearing loss is warranted. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R. § 3.385. The July 2017 VA examination reflected auditory thresholds above 26 decibels in the 1000, 2000, 3000 and 4000 HZ frequencies bilaterally. Thus, the Veteran has a current disability. The Veteran’s service treatment records are silent for any treatment for, or diagnosis of, bilateral hearing loss. Hearing tests at service entrance and exit do not show hearing loss for VA purposes. Regarding noise exposure, during the April 2021 Video Conference Hearing, the Veteran testified that during service he was exposed noise during the performance of his job duties. Specifically, he explained that he was sent to Vietnam and served aboard helicopters and was also exposed to noise from artillery, small arms fire and machine gun fire. He also explained that there were howitzers and 175 long guns just two units away and the noise from those weapons was extremely loud. The Veteran's DD 214 reflects that he was a field radio mechanic and service treatment records confirm his service in Vietnam. The Veteran is competent to report factual matters of which he had firsthand knowledge, such as in-service noise exposure during the performance of his job duties. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, as noted above, the Veteran was awarded the Vietnam Service Medal with two Bronze Service Stars and Vietnam Campaign Medal, as such, his reports of exposure to loud noise through artillery are consistent with the circumstances of his service. 38 U.S.C. § 1154(b); see Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran underwent VA examinations in July 2010 and July 2017 to determine the nature and etiology of any bilateral hearing loss. The Veteran again reported noise exposure during his job duties and service in Vietnam including exposure to artillery and mortar fire. The July 2010 VA examination did not show hearing loss for VA purposes. However, the July 2017 VA examiner diagnosed the Veteran with bilateral hearing loss and opined that it was less likely than not caused by his military service. The rationale provided was that the Veteran had normal hearing at service entrance and separation. (Continued on the next page)   In May 2018, an addendum opinion was obtained. The July 2017 VA audiologist indicated that the Veteran only had a slight shift in hearing during service and not a significant shift. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current bilateral hearing loss. However, the competent evidence as to the etiology of the Veteran's hearing loss is in conflict. While the July 2017 VA examiner concluded that the Veteran's hearing loss was not related to service, the Veteran has competently reported continuous hearing difficulties that began during service following noise exposure, and have continued since. To be sure, the Veteran has explained that the decreased hearing actually began during service as a result of noise exposure and became progressively worse over time. Therefore, given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's hearing loss arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.