Citation Nr: 18131302
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-23 632
DATE:	August 31, 2018
ORDER
The application to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is granted.
Entitlement to service connection for bilateral hearing loss is granted.
FINDINGS OF FACT
1. In an August 2011 rating decision, the RO denied the Veteran’s application to reopen his claim for entitlement to service connection for bilateral hearing loss.  The Veteran filed a timely notice of disagreement (NOD) and the RO issued a May 2012 statement of the case (SOC), but the Veteran did not file a substantive appeal or submit new and material evidence prior to an appellate decision in this matter. 
2. Evidence received since the August 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for ear trouble and raises a reasonable possibility of substantiating the claim.
3. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss disability had its onset in service following a nearby bomb blast.
CONCLUSIONS OF LAW
1. The August 2011 rating decision that denied the application to reopen the claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(d)(3) (2012); 38 C.F.R. §§ 3.156(b), 20.202, 20.1103 (2017).
2. The evidence received since the August 2011 rating decision is new and material and sufficient to reopen the claim of service connection for bilateral hearing loss.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a).
3. The criteria for service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309 3.385 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Army from February 1957 to January 1963.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which continued to deny the Veteran’s application to reopen his previously denied claim for service connection for bilateral hearing loss, previously claimed as ear trouble.  The Veteran timely filed a notice of disagreement (NOD) and substantive appeal, via a VA Form 9.
In his April 2016 substantive appeal, the Veteran elected to have a live videoconference hearing at a local VA office.  However, in August 2018 correspondence, the Veteran requested that his scheduled hearing be cancelled.  Thus, the Board has considered his hearing withdrawn.  See 38 C.F.R. § 20.704(e) (2017).
New and Material Evidence
Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105 (c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a).  There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The Veteran’s claim for entitlement to service connection for bilateral hearing loss was most recently denied in an August 2011 rating decision.  The Veteran filed a timely NOD and the RO issued a May 2012 SOC, but the Veteran did not file a substantive appeal or submit new and material evidence prior to an appellate decision in this matter.  Accordingly, the August 2011 denial is final as to the evidence then of record, and is not subject to revision the same factual basis.  38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 3.156(b), 20.202, 20.1103.  The denial was based on lack of nexus between current bilateral hearing loss and service.
The pertinent evidence then of record included service treatment records (STRs), military personnel records, and VA examinations, including one in July 2011 with a negative nexus opinion.  Pertinent evidence added to the claims file since the August 2011 rating decision includes a May 2015 VA examination report, VA treatment records, and lay statements by the Veteran elaborating on his in-service bomb blast injury and symptoms since that time.  This evidence provides bases for reopening the claim for service connection for bilateral hearing loss.  Specifically, the evidence is new in that it was not before the agency of decision makers at the time of the August 2011 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record.  Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of nexus between current hearing loss and service. 
Thus, the new and material evidence relate to unestablished facts necessary to substantiate the claim for service connection for ear trouble and also raise a reasonable possibility of substantiating the claims.  See Shade, 24 Vet. App. at 110.  The criteria for reopening the claim for service connection for ear trouble have therefore been met.
Service Connection
Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first 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).
Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Sensorineural hearing loss is an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation.  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system).  See also VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (Mar. 2, 2017) (noting that Compensation Service has determined that sensorineural hearing loss constitutes an organic disease of the nervous system).
For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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.  When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran 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, 160 (1993).  The threshold for normal hearing is from 0 to 20 decibels.  Id. at 157.
The Veteran contends that his current bilateral hearing loss disability is a result of his in-service noise exposure.  
STRs reflect normal hearing bilaterally at entrance and separation.  However, in September 1957, the Veteran was admitted to Walter Reed Army Hospital for evaluation of hearing problems.  Treatment notes from the hospital reflect that the Veteran reported that he did not have hearing complaints prior to an accident during basic training where a bomb exploded approximately three to four feet away from him.  He reported that he immediately experienced almost complete deafness bilaterally.  He reported that his hearing was almost completely gone the first month following the injury, in May 1957, with gradual improvement of his hearing with the passage of time.  The Veteran was diagnosed with deafness, perceptive, bilateral, due to undetermined cause.  In October 1957, the Veteran was seen for a follow up on his hearing loss and was diagnosed with deafness, left ear, combined type; right ear, conductive type, very mild, due to chronic otitis media and acoustic trauma.  
Post-service, in December 1965, a VA audiological testing was conducted and on examination, the Veteran’s drums were intact and had a normal appearance. Additionally, tuning fork reactions were normal and conversational voice (20 feet, each ear), revealed normal hearing acuity.  At the time of the evaluation, the Veteran reported a history of a concussion due to a nearby cherry bomb while in service in 1957.  The Veteran reported that his hearing was affected for several years thereafter during which period he was examined and treated from time to time.  The examiner noted that eventually the hearing returned to normal and has remained so to date.  No ear pathology was found.  
A July 2011 audiological VA examination revealed the following pure tone threshold in decibels: 
Hertz
	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right	45	50	40	60	65
Left	50	40	60	70	80

His speech recognition scores were noted as 80 percent in the left ear and 80 percent in the right ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  The Veteran reported that he experienced acoustic trauma while in the military in 1958 which resulted in a significant decrease in his hearing.  The Veteran reported that although his hearing improved following the accident, it never returned to its previous level.  The audiologist reported that a review of the claims file revealed hearing within normal limits bilaterally in 1962.  The audiologist stated that a brief review of the current audiogram demonstrated bilateral sensorineural hearing loss which she reported was possibility consistent with nose exposure.  However, she found that due to the normal audiometric data demonstrated shortly before discharge from the military, it is less likely as not that the hearing loss was the result of his military duty.
A May 2015 audiological VA examination revealed the following pure tone threshold in decibels:
Hertz
	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right	45	50	45	60	65
Left	45	45	55	60	75

His speech recognition scores were noted as 70 percent for the right ear and 80 percent for the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  The audiologist opined that the Veteran’s bilateral hearing loss disability was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service.  As rationale, she reported that a review of the claims file and service medical records revealed that the Veteran had normal hearing sensitivity at separation.  She reported that the audiogram is the objective standard for noise injury, and because the Veteran’s hearing was normal at separation, with no significant threshold shifts having occurred during active duty service, there is no evidence the Veteran’s military noise exposure caused a permanent noise injury affective hearing sensitivity.  Therefore, she concluded that the Veteran’s current bilateral hearing loss is deemed less likely as not (less than 50 percent probability) caused by or a result of military noise exposure.  
Upon review of the evidence of record, the Board finds that service connection for bilateral hearing loss is warranted.  As an initial matter, the Board finds that the preponderance of the evidence supports a current hearing loss disability and in-service noise exposure as reflected by current VA audiological examinations and STRs, respectively.  Thus, the dipositive issue is whether there is a nexus between the two.
The July 2011 and May 2015 audiological VA opinions reflect a lack of relationship between the current bilateral hearing loss disability and the in-service noise exposure.  Specifically, both audiologist based their opinions on the fact that the STRs reflect normal hearing at separation despite the months in service the Veteran experienced hearing difficulties and the diagnosis of deafness partly due to acoustic trauma in service.  Although they both noted the in-service noise exposure, based on the lack of finding of a hearing loss disability at separation, the audiologists concluded that there was no relationship between the Veteran’s conceded noise exposure and current disability.  While the July 2011 audiologist recognized that it was a possibility that the Veteran’s bilateral hearing loss was related to acoustic in-service trauma, she based her negative opinion solely on the basis of the lack of a disability on separation examination.  Thus, their opinions are flawed, because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss.  Ledford v. Derwinski, 3 Vet. App. 87 (1992).
Hearing loss, a chronic disease, was noted in service.  Moreover, there is competent and credible lay evidence of continuity of symptomatology.  During service and the 1965, 2011, and 2015 audiological examinations, the Veteran reported that his hearing was not the same following his acoustic trauma.  Moreover, treatment records reflect that the Veteran has complained of hearing problems since at least 1965.  The Veteran is competent to report the onset and persistent nature of his hearing loss symptoms.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature).  Given this evidence in support of the claim and the lack of an adequate negative nexus opinion, a remand in these circumstances could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003).
The above evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss had its onset in service following a nearby bomb blast.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”).
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Laroche, Associate Counsel