Citation Nr: 21026045 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-45 702 DATE: April 29, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. An unappealed April 2011 rating decision denied the Veteran’s claim for service connection for bilateral hearing loss. 2. Evidence added to the record since the April 2011 rating decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. Resolving reasonable doubt in the Veteran’s favor, he is found to have a current bilateral hearing loss which is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1965 to January 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in November 2014 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In April 2020, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge (VLJ). However, as an audio problem during the hearing prevented transcription of the hearing, the hearing transcript is not of record. Pursuant to 38 C.F.R. § 20.717, the Veteran was given the opportunity to request another hearing. The Veteran had 30 days from February 17, 2021, the date of the Board inaudible hearing letter, to make the request. The Veteran responded in February 2021 that “It seems that a decision has already been made.” There appears to be some misunderstanding in that regard as a decision had not been made as to the claim on appeal. However, based on the grant of the appeal, herein, clarification of the Veteran’s intent with regards to a new hearing is not required. The Board will proceed without prejudice to the Veteran. New and Material Evidence Having Been Received, the Claim of Entitlement to Service Connection for Bilateral Hearing Loss is Reopened. Irrespective of the RO’s actions, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, VA must first determine whether the additional evidence is “new and material.” Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s claim of entitlement to service connection for bilateral hearing loss was first denied in a March 2010 rating decision. In January 2011, the Veteran sought reconsideration of his claim for service connection for bilateral hearing loss. In the April 2011 rating decision on appeal, the RO reopened the Veteran’s previously denied claim for service connection for bilateral hearing loss, but continued the denial finding the evidence did not show that the Veteran’s current bilateral hearing loss condition was aggravated by or caused while on active duty. Notification of the decision was provided to the Veteran in May 2011. The Veteran filed a notice of disagreement with that decision in May 2011. A statement of the case (SOC) was issued to him in June 2013, continuing the denial of the Veteran’s claim. In June 2014, VA received the Veteran’s substantive appeal (VA Form 9) which was determined to be untimely filed. See July 2014 VA determination letter. This determination letter was not appealed. Therefore, the April 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Evidence received since the April 2011 rating decision includes a March 2019 VA audiology assessment. This record documents the Veteran’s report of longstanding hearing loss in both ears since 1970. The record further documents the Veteran’s report of military noise exposure to include noise from jet aircraft, as well as his report of negative post-service occupational noise, and recreational noise to include lawn equipment with use of hearing protection. This evidence is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection for bilateral hearing loss is granted. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that he was exposed to noise from jet aircraft for a period of three years during service related to his duties as a Crew Chief, without hearing protection. See August 2016 VA Form 9. The Board finds that the evidence is at least in equipoise regarding whether the Veteran’s bilateral hearing loss was caused by exposure to acoustic trauma in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). 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). Regarding Holton element one, a current disability is present. The Veteran was diagnosed with a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 upon audiological evaluation in March 2013. An in-service injury is also present. Service records establish the Veteran duties as a Crew Chief on F-4 C/D aircraft, and lay statements establish hearing loss since active duty. See March 2019 VA audiology assessment. Moreover, noise exposure was previously conceded by VA in a June 2013 SOC. The second element of Holton is also met. Regarding the presence of a nexus linking the Veteran’s bilateral hearing loss to active military service, there is evidence both for and against the claim. In favor of the claim is a November 2010 private opinion letter from the Veteran’s treating physician, Dr. M.S., who discussed the Veteran’s extensive in-service noise exposure of approximately three years. Dr. M.S. opined that the Veteran’s bilateral hearing loss is secondary to his service-related acoustic trauma. The rationale to support the opinion is, however, somewhat lacking. There is also evidence against the claim. Service treatment records show a slight threshold shift in hearing from the Veteran’s August 1965 enlistment examination to his January 1969 separation examination. Also of record is a March 2013 VA opinion that determined there was no significant or clinical shift in the thresholds at any frequency for either ear between the entry and exit audiograms. The examiner stated that delayed onset of noise-induced hearing loss is not supported by medical research or clinical experience and that contributions from aging, diet, disease, medication, and work or recreation-related noise exposure cannot be ignored. Thus, he concluded, that it must be considered less likely as not that military noise exposure contributed significantly to the currently exhibited bilateral hearing loss. However, the Board finds that the March 2013 opinion has diminished probative value. There is no indication that the examiner considered the Veteran’s lay assertion of longstanding hearing loss in both ears since 1970. The examiner also did not discuss the significance of the Veteran’s military noise exposure to include exposure to jet aircraft, negative post-service occupational noise, as well as the Veteran’s report that post-service recreational noise exposure included the use of hearing protection. See March 2019 VA audiology assessment. Accordingly, the March 2013 VA medical opinion is at least equally balanced by the November 2010 private opinion letter. The Board also finds the Veteran’s statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In making this determination, the Veteran has confirmed in-service noise exposure and there is evidence of a threshold shift in service. The record documents the Veteran’s report of longstanding hearing loss in both ears since 1970. See March 2019 VA audiological assessment. The March 2019 record also notes the Veteran’s report that his spouse complains about his hearing, that he has to read lips more often, and that he has noticed increased difficulty listening to television. There is no persuasive evidence of record indicating that the Veteran’s statements are not credible. Because sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309 (a), an award of service connection is appropriate solely based on evidence of continuity of symptomatology. Walker, 708 F.3d at 1336-40.   In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.