Citation Nr: 21041069 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-05 301 DATE: July 8, 2021 ORDER The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension is dismissed. The claim of entitlement to service connection for diabetes mellitus, type II, is dismissed. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and the request to reopen is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. On the record at the April 2021 Board hearing, the Veteran withdrew his appeal seeking to reopen the claim of entitlement to service connection for hypertension. 2. On the record at the April 2021 Board hearing, the Veteran withdrew his appeal seeking entitlement to service connection for diabetes mellitus, type II. 3. The Veteran has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to service connection for diabetes mellitus, type II, by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to November 1977. This matter comes before the Board on appeal from a September 2017 Regional Office (RO) rating decision. In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Withdrawn Claims 1. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension is dismissed. 2. The claim of entitlement to service connection for diabetes mellitus, type II, is dismissed. The Veteran affirmed on the record during the April 2021 Board hearing that he wished to withdraw the claim seeking to reopen the issue of entitlement to service connection for hypertension and his claim of entitlement to service connection for diabetes mellitus, type II. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. It was also done in the presence of his accredited representative. Given these circumstances, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran has properly withdrawn his appeal seeking entitlement to the above benefits. Therefore, there remain no allegations of errors of fact or law for appellate consideration on those matters. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. New and Material Evidence 3. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and the request to reopen is granted. Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that 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. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). 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. 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 question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 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, or nexus, 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 may also be granted for listed chronic diseases, such as sensorineural hearing loss, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 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. The Veteran contends that he has a current hearing loss disability that is due to in-service acoustic trauma. This claim was previously denied in an August 2015 rating decision based on the lack of a current disability. Since that time, the Veteran has submitted a March 2017 private audiology report with an audiogram diagnosing "a mild to moderate sensorineural hearing loss from 250HZ through 8000HZ, bilaterally." The audiologist included the audiogram. Unfortunately, the speech recognition scores do not indicate whether the Maryland CNC Test was used, as required under VA regulation. 38 C.F.R. § 3.385. Nonetheless, the Board finds that this record, containing an indication of current hearing loss is new and material. It is new in that it was not of record at the time of the prior decision. It is material in that it pertains to the diagnosis of a current hearing loss disability, which is a service connection element that had not been established at the time of the August 2015 decision. Therefore, new and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. To this extent, the claim is granted. It will be considered on the merits below. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. As noted above, the Veteran contends that he has a current hearing loss disability that is due to in-service acoustic trauma. When asked at his Board hearing to describe his in-service noise exposure, he noted that "they had generators at night ... when I was at basic training." (See Board hearing transcript, page 5.) He also noted that "We had to fire M16s. Then, we also had to throw hand grenades. And this was all in basic training." (See Board hearing transcript, page 5.) He noted that, after basic training, he "had to go to Fort Bliss, Texas to train for Hawk missiles." (See Board hearing transcript, page 6.) He noted that his permanent station was in Germany and "we went to the field for, like, 30 days or 60 days at a time. And we were running generators." (See Board hearing transcript, page 7.) He also noted that they were on "a firing range. And we played wargames with the British and the Germans. Then, we also had playing wargames with the Air Force. So the Air Force, we would simulate the missiles firing at an F-15, so they would fly over our sight and we would have play, like, wargames with them." (See Board hearing transcript, page 7.) He reported that they were given rubber plugs," which he described as "these little things" that "fell out." (See Board hearing transcript, pages 7-8). He noted that "even if they was in the ear, you still heard the loud noise through the hand grenades, M16 machine gun, you could still hear it," and that "It didn't muffle a lot of that stuff at all." (See Board hearing transcript, page 8.) He noted that he did not seek medical treatment for his hearing during service. The Board notes that a May 1976 service treatment record notes that the Veteran's occupation was "Crewman for Hawk Missile #262." The Board finds that the Veteran's reports of in-service noise exposure are consistent with the places, types, and circumstances of his service, and thus his in-service noise exposure is considered to be substantiated. The Board notes that the Veteran's service treatment records do not contain examinations or medical history reports from his entrance into or separation from his active duty service between November 1974 and November 1977. There is, however, a May 1981 examination from his enlistment into the US Army Reserve. The audiometry report is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 20 LEFT 25 30 30 15 15 In terms of current disability, as noted above, a March 2017 private audiology report with audiogram diagnosed "a mild to moderate sensorineural hearing loss from 250HZ through 8000HZ, bilaterally." This test is not considered to be a valid diagnosis of a hearing loss disability for VA purposes, as it is unclear whether the Maryland CNC Test was used, as required under VA regulation. 38 C.F.R. § 3.385. In terms of nexus, the March 2017 private audiologist's report notes that the Veteran "noted a history of noise exposure in the U.S. Army." The Board notes that this report does not actually link a current hearing loss disability with in-service noise exposure. The Board further notes that the Veteran has reported a history of post-service occupational and recreational noise exposure that was not noted in the March 2017 report. Specifically, he reported at his August 2012 VA audio examination that he "Worked in civil service at Army Depots as electronic mechanic ... for 22 years until 1999. Positive noise, no hearing protection." He also reported a history "of recreational noise exposure has weapons, shoots infrequently at range, wears hearing protection." (The Board notes that service connection is in effect for tinnitus based on in-service noise exposure.) Given the above, a remand is required to determine whether the Veteran has a current hearing loss disability for VA purposes and whether any current hearing loss disability is related to service. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. Schedule the Veteran for an examination by an examiner with sufficient expertise to determine whether the Veteran has a current bilateral hearing loss disability and, if so, the etiology of any such disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed, and all findings should be reported in detail. If a hearing loss disability is diagnosed, the examiner should opine as to whether such disability is at least as likely as not (a 50 percent probability or greater) etiologically related to service, to include his in-service noise exposure. For purposes of this opinion, the Veteran's reports of in-service noise exposure are considered credible. At his Board hearing, the Veteran described in-service noise exposure from the following sources: He noted that "they had generators at night ... when I was at basic training." (See Board hearing transcript, page 5.) He also noted that "We had to fire M16s. Then, we also had to throw hand grenades. And this was all in basic training." (See Board hearing transcript, page 5.) He noted that, after basic training, he "had to go to Fort Bliss, Texas to train for Hawk missiles." (See Board hearing transcript, page 6.) He noted that his permanent station was in Germany and "we went to the field for, like, 30 days or 60 days at a time. And we were running generators." (See Board hearing transcript, page 7.) He also noted that they were on "a firing range. And we played wargames with the British and the Germans. Then, we also had playing wargames with the Air Force. So the Air Force, we would simulate the missiles firing at an F-15, so they would fly over our sight and we would have play, like, wargames with them." (See Board hearing transcript, page 7.) He reported that they were given rubber plugs," which he described as "these little things" that "fell out." (See Board hearing transcript, pages 7-8). He noted that "even if they was in the ear, you still heard the loud noise through the hand grenades, M16 machine gun, you could still hear it," and that "It didn't muffle a lot of that stuff at all." (See Board hearing transcript, page 8.) He noted that he did not seek medical treatment for his hearing during service. The Veteran has also reported a history of post-service occupational and recreational noise exposure that was not noted in the March 2017 report. Specifically, he reported at his August 2012 VA audio examination that he "Worked in civil service at Army Depots as electronic mechanic ... for 22 years until 1999. Positive noise, no hearing protection." He also reported a history "of recreational noise exposure has weapons, shoots infrequently at range, wears hearing protection." Any opinion expressed by the VA examiner should be accompanied by a complete rationale that includes discussion of the facts of the Veteran's case and pertinent medical principles. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.