Citation Nr: 22019348 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-34 405 DATE: April 1, 2022 ORDER New and material evidence having been received by VA sufficient to reopen a previously-denied claim to establish service connection for bilateral hearing loss, the claim is reopened. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A June 2016 rating decision denied the Veteran's claim to establish service connection for bilateral hearing loss; the Veteran did not appeal that decision nor was any new and material evidence submitted during the period on appeal. 2. Evidence received since the final June 2016 rating decision raises a reasonable possibility of substantiating the issue to establish service connection for bilateral hearing loss. 3. Resolving all doubt in the Veteran's favor, the Veteran's bilateral hearing loss is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The June 2016 rating decision is final with respect to the Veteran's claim to establish service connection for bilateral hearing loss. 38 U.S.C. § 7150(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. Since the June 2016 rating decision, new and material evidence has been received by VA sufficient to reopen the issue of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1967 to July 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In November 2021, the Veteran and his wife testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing is associated with the electronic claims file. Service Connection and New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing loss and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as it is an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2012). 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss Petition to Reopen As will be fully addressed below, the Board concludes that since the AOJ's prior final denial in June 2016, VA has received evidence which is new and material and raises a reasonable possibility of substantiating the claim. As such, this issue is reopened. Pertinently, in the June 2016 rating decision, the AOJ denied the claim on the basis that there was no medical link between the Veteran's hearing disability and service. The Veteran did not submit a timely expression of disagreement with the AOJ's denial of the claim, nor did he submit pertinent new and material evidence within the appeal period of this rating decision. As such, the June 2016 rating decision is final regarding the AOJ's denial of this claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a), (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In order for the claim that was previously denied to be reopened, evidence must have been added to the record since the prior final denial of the claim that addresses these bases. The AOJ's determinations during the pendency of the present appeal concerning whether or not new and material evidence has been received by VA since the prior final denial is not binding on the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the final denial, the VA has received evidence related to the link between the Veteran's disability and his active service. During the November 2021 Board hearing, the Veteran explained that he has experienced symptoms of hearing loss since service. Additionally, the Veteran's wife testified at the hearing that she knew the Veteran before active service, and that he returned from active duty with hearing difficulty that was not present prior to service. Finally, the Veteran's brother submitted a statement in November 2021, explaining that he did not notice his brother had any difficulty hearing until the Veteran returned from active duty. This evidence provides a link between the Veteran's active service and his hearing disability. The above evidence is "new," as the evidence was not before the VA at the time of the June 2016 rating decision, and "material;" as it raises the reasonable possibility of substantiating the previously denied issue. The Board thus finds that new and material evidence has been submitted to reopen the issue to establish service connection for bilateral hearing loss, since the prior final denial in June 2016. On that basis, the issue is reopened. 2. Entitlement to service connection for bilateral hearing loss The Veteran has bilateral hearing loss for VA purposes, as documented during his June 2016 VA audiologic examination. 38 C.F.R. § 3.385. The Veteran's military occupational specialty (MOS) was infantryman, and he was therefore exposed to hazardous noise. Therefore, acoustic trauma having occurred in service is conceded. The Veteran was provided with a VA audiologic examination in June 2016. The VA examiner provided an unfavorable medical nexus opinion, finding that the Veteran's bilateral hearing loss is less likely as not related to his military noise exposure. The examiner relied on the Veteran's service treatment records, indicating that the Veteran's separation examination documented normal hearing at separation. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. The Board concludes that the June 2016 medical opinion is of little probative value concerning the etiology of the Veteran's hearing loss. The Board finds that the examiner's assertion that the Veteran had normal hearing at the time of discharge, without more, was an insufficient basis for the negative opinions. Service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was found to be within normal limits on audiometric testing at separation from active military service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis to grant entitlement to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board further notes that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued March 2010, that delayed-onset hearing loss must be considered in the service-connection analysis. As the Board finds June 2016 medical opinion inadequate, it is of little evidentiary weight. As already noted, the Veteran is competent to testify as to the observable symptoms such as hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained that he has experienced bilateral hearing loss, a chronic disease of the nervous system, since active duty. During the November 2021 hearing, the Veteran specifically identified an incident during basic training when he first noticed hearing loss, as he was the ammo holder close to the machine gun barrel when 100 rounds went off quickly. The Veteran further elaborated that the hearing loss has persisted since basic training and has progressively worsened since that time. Additionally, statements from the Veteran's wife and brother, both support the Veteran's experience of returning from active duty with hearing loss that was not present before service. Finally, the Veteran further stated that since active service, his occupation has not included noise exposure. As the Board finds that the Veteran is competent and credible with respect to his continuing symptoms of hearing loss, the Board has assigned his statements high probative value. Charles v. Principi, 16 Vet. App. 370, 374 (2002)). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board further notes that hearing loss is a chronic disability for which service connection may be established by way of credible statements of continuity of symptomatology. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's bilateral hearing loss is therefore warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.