Citation Nr: 21031480 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 19-31 281 DATE: May 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A March 2007 rating decision denied entitlement to service connection for bilateral hearing loss, and a February 2016 rating decision denied reopening the Veteran's claim; no appeal was taken from either determination and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the March 2007 and February 2016 rating decisions that denied service connection for bilateral hearing loss is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his bilateral hearing loss is related to his service. CONCLUSIONS OF LAW 1. March 2007 and February 2016 rating decisions, which denied service connection for bilateral hearing loss, are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the March 2007 and February 2016 rating decisions relevant to the claim for entitlement to service connection for bilateral hearing loss is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. The transcript of the hearing is not yet available. However, this appeal meets the criteria for VA's one-touch initiative program, and, as such, this decision is being prepared pursuant to such program in order to provide an immediate response to the Veteran after his hearing. A transcript of the hearing will be added to the Veteran's file later in the normal course of business. Whether new and material evidence has been received to reopen a claim to entitlement to service connection for bilateral hearing loss. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Decisions of the Board are final on the date it is stamped. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In a March 2007 rating decision, the RO denied the Veteran's claim to service connection for bilateral hearing loss, finding that the medical evidence of record did not demonstrate a link between the Veteran's condition and his military service. The Veteran did not file a Notice of Disagreement (NOD) and no new and material evidence was received within one year of issuance of notice of that decision. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the March 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In September 2015, the Veteran submitted a claim to reopen that the RO denied in a February 2016 rating decision. The Veteran did not file a NOD and no new and material evidence was received within one year of issuance of notice of that decision. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the September 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In the August 2018 rating decision on appeal, the RO denied the Veteran's claim to service connection for bilateral hearing loss on the merits, implying the RO reopened the Veteran's claim, based on a finding that no evidence demonstrated a link between the Veteran's bilateral hearing loss and his service. The Board finds that new and material evidence has been received sufficient to reopen the Veteran's claim to entitlement to service connection for bilateral hearing loss. In that regard, the new evidence that was associated with the claims file includes additional lay and buddy statements, and April and December 2019 private treatment records. Specifically, a December 2019 private physician opined that it is at least as likely as not that the Veteran's bilateral hearing loss is related to his service. This evidence is new in that it was not previously considered by the RO or associated with the claims file. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim, a link between his bilateral hearing loss and service. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for bilateral hearing loss. See 38 C.F.R. § 3.156(a). Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss, as related to in-service noise exposure. See August 2018 VA Form 21-526. Specifically, the Veteran asserts that a howitzer discharged near him while serving in the Republic of Vietnam and that he lost his hearing temporarily. See October 2018 lay statement. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(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). To establish service connection, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, to include organic diseases of the nervous system such as hearing loss, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). A hearing loss disability for VA purposes means that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran initially underwent a VA audiological examination in January 2007, at which time it was demonstrated that he had a bilateral hearing loss disability for VA compensation purposes. See January 2007 VA examination. Specifically, the Veteran had auditory thresholds of 40 decibel (dB) hearing loss at 4000 hertz (Hz) in the right ear, and 40 dB hearing loss at 3000 Hz and 60 dB hearing loss at 4000 Hz in the left ear. Id. Therefore, the first element of service connection has been established. See Shedden, 381 F.3d at 1167. With respect to an in-service injury or disease, the Veteran has consistently asserted and testified that he was exposed to artillery and smalls arms fire and that a howitzer went off right next to him resulting in him going deaf for a few days. See January 2007 VA examination; December 2006 VA treatment records; April 2018 and December 2019 private treatment records; October 2018 lay statement; March 2021 hearing testimony. The Veteran is competent to describe his in-service noise exposure. See Washington v. Nicholson, 19 Vet. App. 363, 369 (2005). Therefore, the Board finds that the second Shedden element of an in-service injury, consisting of acoustic trauma, has been met. See Shedden, 381 F.3d at 1167. With respect to the third element of service connection, the Veteran was afforded VA examinations in January 2007 and August 2018. Both VA examiners opined that the Veteran's bilateral hearing loss is not likely related to noise exposure while in service. See January 2007 and August 2018 VA examinations. As rationale, both VA examiner heavily relied on the finding that the Veteran's service treatment records were silent for any hearing loss symptoms or diagnosis and there was no threshold shift that occurred from entrance to his separation. Id. Both examiners determined that the Veteran's March 1966 separation audiogram testing demonstrated normal hearing at the time of his separation. Id. However, the Veteran testified that he did not have an audiogram at the time of his separation. Additionally, the Veteran provided several buddy statements from fellow service members who asserted that they also did not recall undergoing any hearing tests at the same time of separation as the Veteran. See October 2018 buddy statements. Moreover, the Veteran's March 1966 separation audiogram shows zero dB at 500, 1000, 2000, and 4000 Hz for both ears. There were no results listed for 3000 Hz. It is unclear whether an audiogram was actually conducted and in light of the Veteran's statements and buddy statements, the Board finds the Veteran competent and credible to assert that he did not undergo an audiogram at the time of his separation. Therefore, the Board finds the January 2007 and August 2018 VA examinations inadequate for decision making purposes as they rely on an inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In support of his claim, the Veteran provided a December 2019 private audiogram and medical opinion. The Veteran's private physician noted the Veteran's reports that he was in combat and subjected to heavy arms fire and lost his hearing for a three-day period from a large artillery blast. See December 2019 private examination. The private physician opined that the Veteran's bilateral hearing loss was at least as likely as not related to his service. Id. The private physician noted he saw the Veteran for his tinnitus as well and noted that the Veteran has also had tinnitus since his combat experience. Id. As such, the Board finds the December 2019 private examiner's medical opinion adequate for decision making purposes and entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302. In sum, the Board finds that there is adequate medical evidence that the Veteran's bilateral hearing loss is at least as likely as not related to his active duty service. Therefore, in consideration of all the evidence in this case, and with resolution of any doubt in the Veteran's favor, the Board finds that service connection for the Veteran's bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.