Citation Nr: 21027210 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-38 981 DATE: May 5, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for bilateral hearing loss is granted. Service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was denied in a March 2002 rating decision and the Veteran did not appeal the decision. 2. Evidence received since the March 2002 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for left ear hearing loss. 3. The Veteran currently has left ear hearing loss to an extent recognized as a disability for VA purposes, and the evidence is in equipoise on whether it is etiologically 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, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from August 1991 to September 2000 and from June 2001 to October 2002. In February 2021, the Veteran testified at a videoconference hearing before the undersigned. 1. New and material evidence to reopen the claim for service connection for bilateral hearing loss. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran submitted a claim for service connection for bilateral hearing loss in July 2001, which was denied in a March 2002 rating decision on the bases that service treatment records (STRs) showed the Veteran's hearing to be within normal limits, and results of a September 2001 VA examination indicated that the Veteran's hearing loss did not rise to the level to be considered a disability for VA purposes. The Veteran was notified of the decision and he did not appeal it. Additional service personnel records were associated with the claims file in 2016; however, these records were not relevant to the issue of hearing loss and accordingly 38 C.F.R. § 3.156(c) does not apply. As such, the March 2002 rating decision is final. The additional relevant evidence received since the March 2002 rating decision includes a VA examination report, VA treatment records and lay statements. A February 2017 VA audiometric examination indicates the Veteran was found to have left ear hearing loss that met the criteria to be considered a hearing loss disability for VA purposes. Additionally, June 2012 VA treatments records indicate the Veteran was experiencing diminished hearing. Further, the Veteran testified in a February 2021 Board hearing that his hearing impairment began in service and has continued since then. Thus, presumed credible, there is evidence that the Veteran has a hearing loss disability that is related to service. Accordingly, new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 2. Service connection for left ear hearing loss. The Veteran contends that his left ear hearing loss is due to his military service. Specifically, the Veteran asserts that his hearing loss began while in service, from noise exposure associated with his service in security forces and as a combat arms instructor, and has progressively gotten worse over time. See February 2021 Hearing Transcript. The Veteran also noted in his July 2017 Form 9 that he was exposed to gunfire and high explosive devices on a daily basis and questioned how this exposure could only affect his right ear and not his left ear. The Board notes that the Veteran was granted service connection for right ear hearing loss in a February 2017 Rating Decision. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. In this case, the Board finds that the Veteran has current left ear hearing loss that meets the criteria of 38 C.F.R. § 3.385 to be considered a disability for VA purposes. In February 2017, the Veteran underwent a VA audiometric examination. The examination report reflects the following puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 35 30 30 His speech discrimination score using the Maryland CNC word list was 100 percent in the left ear. Results of the February 2017 audiometric examinations indicate that the left ear showed auditory thresholds of 26 decibels or greater in the frequencies of 2000, 3000, or 4000 Hertz. As such, the Board finds that the Veteran has a current left ear hearing loss disability. In March 2021, the Veteran underwent a private medical audiometric examination. The examination report reflects the following approximate puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 25 25 40 40 40 His speech discrimination score using the Maryland CNC word list was 96 percent in the left ear. Results of the March 2021 audiometric examinations indicate that the left ear showed auditory thresholds of 40 decibels in three of the frequencies of 2000, 3000, and 4000 Hertz. As such, the Board finds that the Veteran has a current left ear hearing loss disability in his most recent audiometric examination. Next, the Board finds that in-service noise exposure is established. First, the Board notes that the Veteran is already service-connected for right ear hearing loss. Second, the Veteran can describe being exposed to loud noise, such as that caused by flight line air traffic, gunfire and explosions. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran asserted experiencing hearing loss in service from grenade concussions and other explosions. His lay statements are credible, as they have been consistent and are confirmed by the circumstances of his service. The Veteran's DD Form 214 indicates that he was in security forces and served as a combat arms instructor. His decorations include, but are not limited to, an NCO professional military education ribbon and a Navy expert pistol medal. For these reasons, in-service acoustic trauma to the left ear is established. The final question is whether there is a nexus between the current left ear hearing loss disability and the acoustic trauma in service. In this regard, the Board finds that the evidence is at least in relative equipoise. Although the Veteran was not specifically diagnosed with a hearing loss disability of the left ear in active service, such is not required. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Board has considered the Veteran's February 2017 VA examination but affords the examiner's opinion low probative value. The examiner did not provide a clear rationale for their conclusion regarding the left ear hearing loss service connection claim. The Board notes that the examiner concluded the right ear hearing loss was related to service and the RO granted the Veteran service connection for hearing loss in his right ear based upon this opinion. The reason the left ear was not also granted at that time was because the examiner found there was no significant threshold shift during service. The Board notes, however, that STRs indicate some hearing loss during service. The following charts are audiometric examinations of the Veteran's left ear during service: In September 1992, the Veteran underwent an audiometric examination and the examination report reflects the following puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 20 10 20 20 20 In January 1997, the Veteran underwent an audiometric examination and the examination report reflects the following puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 20 20 20 In June 2000, the Veteran underwent an audiometric examination and the examination report reflects the following puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 25 20 25 The Board acknowledges that during the June 2000 audiometric examination, the Veteran noted that he was experiencing decreased hearing due to flight line and gun range noise. This examination reflects decreased hearing as the threshold for normal hearing ranges between zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The Veteran also requested an additional hearing examination due to his continuous hearing problems during service. In September 2001, the Veteran underwent an audiometric examination at the VA. The report reflects the following puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 25 30 25 In January 2002, the Veteran underwent an audiometric examination and the examination report reflects the following puretone thresholds for his left ear: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 20 20 20 The Board notes these various audiometric examinations performed during service indicate some level of hearing loss in the Veteran's left ear. Additionally, the Veteran asserted at a February 2021 Board hearing that he experienced noise exposure in service which caused decreased hearing in both ears. The Veteran further noted that his hearing difficulty continued throughout service and had progressively gotten worse over time to the point where he sought treatment. In this instance, the Veteran has reported experiencing continuous hearing difficulty since active service, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran's statements are credible because he has been consistent throughout the appeals period and his statements are consistent with STRs which reflect some degree of hearing loss during service. Therefore, these statements concerning persistent symptoms since service are entitled to probative weight. In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left ear hearing loss arose during service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. See 38 C.F.R. § 3.303 (d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence); Hensley, 5 Vet. App. at 159 (holding that service connection is not precluded for hearing loss which first met VA's definition of disability at 38 C.F.R. § 3.385 after service). The evidence of record demonstrates acoustic trauma in service and the Veteran has reported noticing that his hearing diminished during service and continued to worsen since service separation. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for left ear 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 Dourmashkin, Mark W. 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.