Citation Nr: 21039706 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-46 687A DATE: July 1, 2021 ORDER New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's claim for service connection for bilateral hearing loss was denied by a September 1997 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the September 1997 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss was caused by in-service noise exposure. CONCLUSIONS OF LAW 1. The September 1997 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1988 to December 1991. This matter is on appeal of a February 2014 rating decision. The Board remanded the appeal for further development in November 2018. 1. New and material evidence The Veteran's claim of service connection for an ear condition including hearing loss was originally denied by an August 1997 rating decision. The agency of original jurisdiction (AOJ) determined that that there was no evidence of a chronic disability related to service, noting that his service treatment records (STRs) were not of record. His STRs were associated with the claims file. A September 1997 rating decision again denied his claim for service connection for an ear condition, including hearing loss on the basis that there was no evidence of a chronic condition incurred in service. The AOJ notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final for this issue. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran's petition currently before the Board to reopen his claim for service connection for bilateral hearing loss was received by the AOJ in February 2013. The AOJ granted the petition to reopen the claim and denied the claim on the merits in the February 2014 rating decision. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of the AOJ's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all of the evidence. Justus, 3 Vet. App. at 512. Evidence added to the record since September 1997 includes a July 2004 private treatment record noting the Veteran's report of deafness and tinnitus since 1990 when he was exposed to loud noise from a grenade explosion with clinical evidence of severe left ear sensorineural hearing loss. Also added to the record were December 2013 and October 2017 VA examination reports showing objective evidence of bilateral hearing loss for VA purposes. Evidence added to the record since September 1997, also includes ongoing private treatment records for diagnosed bilateral hearing loss and a May 2020 private audiologist's opinion that the Veteran's bilateral hearing loss is as likely as not related to his exposure to loud noises in service. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the September 1997 rating decision. It is also material in that it relates to unestablished facts necessary to substantiate the claim for service connection for bilateral hearing loss as the private treatment records as well as both the examination reports, provide evidence of a current chronic disability and the private audiologist's opinion provides an etiological link to the Veterans service not previously considered and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection for bilateral hearing loss is reopened. 2. Entitlement to service connection for bilateral hearing loss Service connection will be granted if it is shown that the Veteran has a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, such as sensorineural hearing loss (as an organic disease of the nervous system) will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his currently diagnosed bilateral hearing loss is the result of the documented acoustic trauma he experienced in service when there were 2 explosions to his left side as a result of an accidental grenade detonation. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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. December 2013 and October 2017 VA audiogram results indicate the Veteran has bilateral hearing loss for VA purposes. The Board finds that the Veteran experienced an in-service injury, namely exposure to hazardous noise as documented in his STRs. An August 1988 STR notes that he experienced temporary decreased hearing in the left ear after being exposed to 2 loud explosions. Further, his military occupational specialty (MOS) was self-propelled field artillery system mechanic, which would likely expose him to hazardous noise from guns and artillery during service. A review of the record also indicates the Veteran reported to his treating physicians since July 2004 that onset of his hearing loss occurred when he was exposed to loud noise from a grenade explosion in service. The Board finds the Veteran's report of hearing loss beginning in service and continuing since competent and credible and that his indication that his hearing loss started in service indicates that it had continued since then and places great probative weight on his reported statements to his treating physicians. The Board acknowledges that the December 2013 and October 2017 VA audiology examiners opined that the Veteran's bilateral hearing loss was less likely than not a result of noise exposure in service. The examiners' rationale for the opinions was based on the fact that while there was evidence of temporary left ear hearing loss following a grenade explosion, the evidence of record revealed that his hearing was within normal limits at the time of his discharge in 1991. The examiners, while acknowledging his in-service exposure to noise, did not address the Veteran's statements that his hearing loss started in service after the grenade exposure. However, the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Moreover, as noted above, the examiners did not adequately consider or address the Veteran's lay statements that his symptoms had their onset during service shortly after his exposure to loud noises from the grenade explosion. As such, the December 2013 and October 2017 opinions lack significant probative value in this matter. In May 2020, a private audiologist, after reviewing pertinent records in the Veteran's claims file and private treatment records, opined that the Veteran's bilateral hearing loss was more likely than not related to his military noise exposure. She noted that the Veteran experienced noise-induced threshold shift in his left ear following the accident involving the grenade explosion and that he described ongoing exposure to numerous live firings of weapons known to be hazardous to hearing. She also noted that while STR audiological findings as late as February 1990 show that the Veteran's hearing returned to baseline several days after the accident, the Veteran continued to be exposed to loud noises from weapons as a field artillery system mechanic afterwards and that his last audiological examination was more than a year before his discharge in December 1991 and that it is therefore not known whether his bilateral hearing was normal at the time of his discharge. Her rationale reflects thorough consideration of the Veteran's medical history and addresses the pertinent evidence in this case, to include the Veteran's lay reports. As such, the Board assigns a high degree of probative value to this opinion. Considering the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his documented in-service noise exposure. The May 2020 opinion is the most probative opinion regarding the etiology of the Veteran's disability and of greater probative weight. Accordingly, the benefit of the doubt is resolved in the Veteran's favor, and service connection for bilateral hearing loss is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.