Citation Nr: 22012289 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 19-00 471 DATE: March 3, 2022 ORDER The request to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed July 1998 rating decision, the Regional Office (RO) denied service connection for bilateral hearing loss. 2. Evidence received since the final July 1998 rating decision that denied service connection for bilateral hearing loss was not previously of record and relates to an unestablished fact necessary to substantiate the claim; and, when considered with previous evidence, raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The July 1998 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.32, 19.52, 20.1103. 2. Evidence received since the final July 1998 rating decision that denied service connection for bilateral hearing loss is new and material; therefore, the criteria for reopening the previously denied claim of entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force with active duty from June 1970 to July 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2018 Regional Office (RO) rating decision. In that rating decision, the RO continued the denial of service connection for bilateral hearing loss. The Veteran's notice of disagreement (NOD) was received in June 2018. The RO issued a statement of the case (SOC) in October 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2018. In January 2021, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Whether new and material evidence has been received to reopen the previously denied claim of service connection for bilateral hearing loss The Veteran originally filed a service connection claim for hearing loss in March 1998. A July 1998 rating decision denied the Veteran's service connection claim for bilateral hearing loss on the basis that the evidence of record shows that the Veteran had preexisting left ear hearing loss and there is no evidence that this condition was aggravated beyond its normal course by service and there is no evidence showing that right ear hearing loss was incurred in service. The evidence of record at the time of the July 1998 denial consisted of service treatment records and medical evidence from July 1986 to July 1993. Although notified of the denial in a July 1998 letter, the Veteran did not initiate an appeal with the July 1998 rating decision within one year of the rating decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. §§ 3.156 (b), (c). Accordingly, the July 1998 rating decision is final. See 38 C.F.R. § 20.1103. A finally decided service connection claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). VA regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Id. at 118, 124 (Lance, J. concurring). The questions in this case are whether evidence was associated with the claims file after the prior final denial of the Veteran's service connection claim for bilateral hearing loss, and if so, whether the evidence is new and material to his claim. The Veteran filed another claim for service connection for bilateral hearing loss in February 2018. The relevant evidence of record received since the final July 1998 rating decision includes a VA treatment records from May 2005 to June 2019, a March 2018 VA examination, lay statements from the Veteran, and a January 2021 Board hearing transcript. The lay statements from the Veteran and the January 2021 Board hearing transcript are new in that they were not of record at the time of the July 1998 rating decision. The lay statements from the Veteran and the July 2021 Board hearing transcript are also material, because the Veteran provided lay statements that he was exposed to loud noises while working on the flight line while working in pavement and grounds during active duty. The Veteran also testified that he was not aware that he had hearing loss in the left ear at entrance into service and that during service he sought treatment for sharp pains in his ears and he sought treatment for sharp pains in his ears after service. These lay statements indicate that the Veteran's current hearing loss may have been incurred in or aggravated by active duty service. Thus, the additional evidence is both new and material and, therefore, the requirements for reopening the previously denied service connection claim for bilateral hearing loss are met. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss. With respect to the Veteran's reopened service connection claim for bilateral hearing loss, the evidence shows that hearing loss in the Veteran's left ear pre-existed active duty service. Specifically, the Veteran was provided with audiometric testing as part of his entrance examination in May 1970. The entrance examination shows that the Veteran had hearing loss in the left ear of 45 dB in at least one of the required frequencies under VA regulations and the physician documented that the Veteran had defective hearing in the left ear. The examiner also noted that there was impacted cerumen in the ear. Thus, the Veteran had a left ear hearing loss disability prior to military service. 38 C.F.R. § 3.385; See also Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The law provides that, if a disability pre-existed service, and/or was present on entry into service, the Veteran cannot bring a claim for service incurrence for that disability, but the Veteran may bring a claim for service-connected aggravation of that disability. Accordingly, the evidence must indicate that the Veteran's pre-existing left ear hearing loss was aggravated by the Veteran's active duty service for service connection to be warranted. With respect to the Veteran's service connection claim for right ear hearing loss, the entrance examination does not reflect that the Veteran had a hearing loss disability as the audiometric results for the right ear in the May 1970 entrance examination reflect that the Veteran did not meet the requirements for a hearing loss disability under VA regulation. As a hearing loss disability was not noted on the entrance examination with respect to the right ear, he is presumed to have been in sound condition on entry into service with regard to right ear hearing loss. Thus, the evidence must show that the Veteran's right ear hearing loss was caused by disease or injury during the Veteran's active duty service for service connection to be warranted. The Veteran was provided with a VA examination and medical opinion in March 2018. The examiner determined that the Veteran's left ear hearing loss disability is less likely than not caused by or a result of an event in military service. The examiner explained that the records showed no permanent significant changes in hearing thresholds greater than normal measurement variability during military service. He entered the military with hearing loss and he was discharged from the military with similar hearing loss with no threshold change. The examiner also cited to the 2006 Institute of Medicine that stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. With respect to the right ear hearing loss, the Veteran's right ear hearing loss did not meet the criteria for a hearing loss disability per regulation at 38 C.F.R. § 3.385 at the time of the March 2018 VA examination. However, the examiner provided the opinion that the Veteran's right ear hearing loss disorder is as likely as not caused by or a result of an event in military service. The examiner explained that the records showed permanent significant changes in hearing thresholds greater than normal measurement variability during military service. As the most recent VA examination that evaluated the Veteran's hearing loss was conducted in March 2018, the Veteran should be provided with a new VA examination to determine if the Veteran's right ear hearing loss meets VA's definition of a hearing loss disability. The March 2018 VA medical opinion regarding left ear hearing loss is of low probative value as the examiner did not address whether it was at least as likely as not that the Veteran's pre-existing left ear hearing loss was aggravated by service. Furthermore, the examiner relied on a 2006 Institute of Medicine report that the United States Court of Appeals for Veterans Claims has found that there are qualifying or contradictory aspects in the Institute of Medicine report regarding delayed-onset hearing loss in the 2006 Institute of Medicine report. McCray v. Wilkie, 31 Vet. App. 243 (2019). As the medical treatise relied upon by the March 2016 examiner contains qualifying or contradictory findings, the opinion provided by the examiner is of diminished probative value. Thus, a new VA examination and medical opinion is warranted. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA audiological examination for both ears and to obtain an opinion with respect to his service connection claim for left ear hearing loss The claims file, including a copy of this REMAND, must be made available to the examiner, and the opinion should reflect that the claims file was reviewed in conjunction with the examination. The examiner should perform any medically indicated testing, including audiometric and speech recognition testing in both ears, and should note any reason for not reporting such test results. The examiner should document the nature, extent and severity of exposure to loud noise during and after service. The examiner must elicit from the Veteran a history of the symptoms of his left ear hearing loss. After reviewing the record and examining the Veteran, the examiner should offer an opinion as to the following: 1) Whether it is it at least as likely as not that the Veteran's pre-existing left ear hearing loss disorder was aggravated (worsened beyond the natural progression of the disability) as a result of exposure to loud noise during the Veteran's active duty service and/or due to seeking treatment for ear pain during active duty service. The examiner should provide an explanation for all conclusions reached based on the evidence of record and medical principles. The examiner is specifically requested to address any shifts in puretone thresholds during active military service, that the Veteran testified he was unaware he was diagnosed with hearing loss at entrance into service and he did not have any hearing issues at the time of entrance, and that the Veteran was exposed to loud noise of aircraft while working on the flight line during active service without hearing protection. The examiner should also consider and discuss the lay statements of record to include the onset and continuous nature of his hearing of his hearing loss and that he thought his hearing was normal when he entered active duty service. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. (2) If the answer to (1) is negative, whether the Veteran's current left ear hearing loss disorder is at least as likely as not (i.e., a fifty percent or greater probability) aggravated by the Veteran's service-connected tinnitus. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.