Citation Nr: 21029028 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-19 562 DATE: May 12, 2021 ORDER The application to reopen the claim for service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A November 2012 rating decision denied a claim for service connection for bilateral hearing loss. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. 2. The Veteran's hearing loss began during service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for bilateral hearing loss has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to June 1971. The Veteran testified at a January 2021 Board hearing. The transcript is of record. Application to reopen The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). A claim for service connection for bilateral hearing loss was denied in a November 2012 rating decision. The claim was denied because the record did not show a diagnosis of hearing loss as defined by VA. The Veteran was notified of the decisions and did not appeal within the appeal period or submit pertinent evidence within the appeal period. In connection with the Veteran's claim to reopen, evidence has been added to the record, which includes a July 2013 VA audiology record which documents hearing loss as defined by VA. The Board finds that new and material evidence has been received sufficient to reopen the 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred in or aggravated by inactive duty for training. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered 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 absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). After consideration of the record, the Board finds service connection is warranted for bilateral hearing loss. The record indicates that the Veteran had hazardous noise exposure during service, he has been diagnosed with hearing loss as defined by VA per the July 2013 speech recognition scores. Additionally, he and his spouse have competently reported that he experienced diminished hearing acuity during and since service. The Board acknowledges that the record includes negative opinions from the April 2016 VA examiner. The record also includes a positive nexus opinion from a private audiologist, however, and resolving all doubt in favor of the Veteran, the Board finds service connection is warranted for hearing loss. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.