Citation Nr: 1760265
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 16-50 014 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
Entitlement to service connection for bilateral hearing loss.
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
M. C. Wilson, Counsel
The Veteran had active service from September 1965 to July 1967.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.
By way of background, the Veteran filed an original claim for service connection for bilateral hearing loss in January 1994. In July 1994, the RO denied the claim on the grounds that there was neither evidence of hearing loss in service nor was there evidence of neurosensory hearing loss that would warrant a compensable evaluation within one year of the Veteran’s discharge from service. The Veteran did not appeal this decision and it is final. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Thereafter, in June 1997 and again in November 2010, the Veteran filed petitions to reopen his claim for service connection. In the November 2011 rating decision on appeal, the RO continued the denial of the Veteran’s claim on the merits.
Generally, the Board may not assess the merits of a claim that has been the subject of a final denial, but the Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108. 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. See id. at 118; see also 38 C.F.R. § 3.156(a).
The Board finds that evidence submitted since the July 1994 rating decision was issued is sufficient to support the Veteran’s petition to reopen his claim for service connection, as it constitutes new and material evidence. More specifically, in October 2017, non-VA clinician Dr. C. Hood attributed the Veteran’s bilateral hearing loss to his noise exposure in Vietnam. Thus, the Board will review the claim for service connection for bilateral hearing loss on the merits.
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
FINDING OF FACT
The Veteran’s bilateral hearing loss had its onset in service.
CONCLUSION OF LAW
Bilateral hearing loss was incurred in service. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran seeks service connection on the basis that his hearing loss began in service. He reported that he worked as combat engineer and was exposed to military gunfire, explosives, noise from detonation charges for explosives, helicopter noise, bomb explosions, and rockets. See October 2016 Substantive Appeal (VA Form 9).
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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
For the purposes of the 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 (2017).
Notably, “section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. . . . Therefore, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993).
As a preliminary matter, the Board acknowledges that the Veteran currently has a bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385.
The Board notes that VA has already conceded the Veteran’s exposure to noise during service, finds the Veteran’s report of in-service noise exposure both competent and credible, and notes that his service records show that his reports are consistent with the circumstances of his service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) (“the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted”). Specifically, the evidence shows that his military occupational specialty was that of bridge specialist.
The Veteran’s service treatment records (STRs) are negative for reports of hearing loss and a July 1967 separation examination documents whisper test results of 15/15 bilaterally. In January 2011, a VA examiner opined that the Veteran’s hearing loss was not caused by and is not the result of military noise exposure because his July 1967 separation audiogram reveals normal hearing acuity bilaterally and comparison of his 1965 induction audiogram and 1967 separation audiogram does not reveal a standard threshold shift.
In December 2011, non-VA physician Dr. R. Kauffman opined that the Veteran has severe hearing loss directly related to his service and indicated that there is nothing else since then that could have produced this kind of hearing loss. Dr. Kauffman reported that the Veteran served in the kind of setting where he would expect to see very severe hearing loss. Furthermore, since service, the Veteran has been a surveyor, and thus, has not been exposed to any significant amount of loud noise.
Similarly, in October 2017, Dr. Hood opined that the Veteran’s bilateral hearing loss is due to in-service noise exposure, as he was exposed to very loud noises and did not use ear protection.
Based on the foregoing, to include VA’s concession that the Veteran was exposed to noise during service and the Veteran’s competent and credible report of hearing loss that had onset during service and has continued since service, the Board resolves any doubt in the Veteran’s favor and finds that service connection for bilateral hearing loss is warranted.
Service connection for bilateral hearing loss is granted.
STEVEN D. REISS
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs