Citation Nr: 1754146	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-15 925A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim for service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from May 1969 to October 1970.  He served in Vietnam and was in combat.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

In June 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript is of record.  

The issue of whether new and material evidence has been presented to reopen the previously denied claim of service connection for tinnitus has been raised by the record at the June 2017 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  Service connection for bilateral hearing loss was denied in a July 2007 rating decision that was not appealed and became final.

2.  Evidence added to the record since the July 2007 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for bilateral hearing loss and raises the possibility of substantiating the claim.

3.  The Veteran's bilateral hearing loss is related to service.


CONCLUSIONS OF LAW

1.  Evidence added to the record since the July 2007 rating decision, denying service connection for bilateral hearing loss, is new and material and the claim for service connection for bilateral hearing loss is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

2.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).  New evidence is defined as 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).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  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 for a disability, there must be competent evidence of the following:  (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.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b) (2012).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102 (2017).  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

Service connection for certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258 (2015).  Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service.  38 C.F.R. § 3.307(a)(1).

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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2017).  Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection.  The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ."  Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)).  Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service.

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) (2012) and its implementing regulation, 38 C.F.R. § 3.304(d) (2017), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden, 381 F.3d at 1167). 

The Veteran's claim of entitlement to service connection for bilateral hearing loss was denied by a July 2007 rating decision which is now final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2017).  The Veteran did not file a notice of disagreement with the July 2007 rating decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1367-8; see also Buie, 24 Vet. App. at 251-52.  Thus, the July 2007 rating decision became final based on the evidence then of record.  38 U.S.C §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105 (2017).  

At the time of the July 2007 rating decision, the evidence of record included the STRs.  The Veteran did not have any complaints, treatment, or diagnoses related to  hearing loss during service, and an audiogram was not performed at his September 1970 discharge examination.  The record also included VA treatment records.  At August 2003 treatment it was noted that the Veteran had impaired hearing and wore a hearing aid in the right ear.

The Veteran had a VA examination in May 2007.  He reported first noticing difficulty hearing about 20 years before.  His military noise exposure included proximity to artillery and loud vehicles.  Civilian noise exposure included some carpentry work, some work in a body shop, and limited hunting.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
50
55
70
LEFT
20
25
50
65
80

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 90 percent in the left ear.  The examiner diagnosed the Veteran with bilateral mild to severe sensorineural hearing loss.  She opined that due to the lack of evidence of hearing loss at separation and the Veteran's estimate of the onset of hearing loss being many years after separation, it was less likely than not that his hearing loss was related to noise exposure during military service.

The additional evidence added to the record since the July 2007 rating decision includes March 2010 private audiology treatment records in which the Veteran said that he purchased a Miracle Ear hearing aid around 1987 at the urging of his wife.  The Veteran felt that his hearing loss began during service due to noise exposure from various weapons training and serving as a combat rifleman.  He noted that hearing protection was not offered during his service.  The examiner opined that it was at least as likely as not that the Veteran's hearing loss was a result of active military service.  No rationale was provided.

The Veteran had another VA examination in February 2015.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
45
60
65
LEFT
20
35
55
55
80

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear.  No opinion was provided on etiology.

The Veteran had another VA examination in July 2015.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
50
65
75
LEFT
30
40
60
65
80

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 90 percent in the left ear.

The examiner opined that it was not at least as likely as not that the Veteran's hearing loss was caused by or was a result of an event in military service.  The rationale was that the Veteran denied hearing loss or hearing related issues at separation from service and that the STRs do not show reports of hearing loss.  The examiner noted noise exposure in service, extensive exposure after service, and that the medical evidence does not indicate a shift or change in hearing during or immediately following service.

The Veteran had private audiology treatment in February 2016.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
65
70
75
LEFT
45
50
70
80
80

The Veteran wrote in a February 2016 statement that he would have denied anything at the time of his discharge to not delay separation from service.  After work he did carpentry work part time for a year, autobody work full time for a year and a half, and farmed part time.  He then worked for 30 years as a rural mail carrier.  The Veteran occasionally went hunting and used hearing protection while farming, doing lawn care, and doing autobody work.  

A private physician wrote in May 2016 that the Veteran had had hearing loss for more than 20 years and had worn hearing aids for 20 years.  It was noted that the Veteran had a significant history of noise exposure in the military and that hearing protection was not used in service.  The private physician reviewed audiograms from previous years and compared it to the one from February 2016, which showed sloping sensorineural hearing loss that went from mild to severe.  The pattern of the Veteran's hearing loss was "text book" for noise induced hearing loss.

The Veteran later testified at the June 2017 Board hearing that no hearing protection was used during service and that he was exposed to noise from firearms, Claymores, trucks, and generators.  His only post-service occupational noise exposure was when he worked on the body shop.  His wife noticed problems with his hearing when they got married about a month after his service.  

The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened.  See Shade, 24 Vet. App. at 117.  Specifically, the new evidences suggests that the Veteran's bilateral hearing loss could be related to in-service noise exposure.  Such evidence is presumed credible for the purposes of determining whether the evidence is new and material.  Therefore, the additional evidence is both new and material, and the claim for service connection claim for bilateral hearing loss is reopened.

Reviewing the reopened claim on the merits, the Board finds the Veteran credible regarding his in-service noise exposure and that it is consistent with the his service as a rifleman in combat in Vietnam.  See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  The opinions from the VA examiners cannot be given probative value because they are based on the lack of in-service findings of hearing loss.  See Hensley, 5 Vet. App. at 160.  Furthermore, the Veteran's credible statements regarding having limited noise exposure after service show that the July 2015 VA examiner was mistaken regarding the extent of the post-service noise exposure.  The May 2016 opinion of the private physician that the Veteran's hearing loss was noise induced is given probative value because it was based on a review of audiogram results over a long period of time.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Therefore, the Board finds that service connection for bilateral hearing loss is also warranted.













ORDER

New and material evidence has been received, and the Veteran's service connection claim for bilateral hearing loss is reopened.

Service connection for bilateral hearing loss is granted.




______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

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