Citation Nr: 18160666
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 14-38 714A
DATE:	December 27, 2018
ORDER
The request to reopen a claim of entitlement to service connection for a left ear hearing loss disability is granted.
Service connection for left ear hearing loss disability is granted.
REMANDED
Service connection for peripheral neuropathy of the left lower extremity is remanded.
Service connection for peripheral neuropathy of the right lower extremity is remanded.
FINDINGS OF FACT
1. A March 2009 rating decision denied the Veteran’s claim of service connection for a left ear hearing loss disability. The Veteran was informed of the decision but he did not perfect an appeal nor was new and material evidence submitted within a year of the decision. Therefore, the decision became final.
2. New and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for a left ear hearing loss disability has been received.
3.  Resolving reasonable doubt in his favor, the Veteran’s left ear hearing loss disability is attributable to service.

CONCLUSIONS OF LAW
1. The March 2009 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
2. New and material evidence sufficient to reopen the previously denied issue of entitlement to service connection for a left ear hearing loss disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
3. The criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1966 to July 1969.
This matter comes before the Board of Veterans’ Appeals (Board) from November 2015 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
In August 2018 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. 
New and Material Evidence
Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
New evidence means existing 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).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216 (1994).
In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).
In this case, service connection for a left ear hearing loss disability was denied in a March 2009 rating decision. The RO found that the Veteran’s hearing loss was neither incurred in or caused by service. The Veteran was informed of the decision and he did not appeal nor was new and material evidence received within a year of the decision. As such, the decision became final.
The evidence added to the record since the March 2009 rating decision includes an October 2015 audiology VA examination, as well as several lay statements regarding the Veteran’s noise exposure in service in addition to testimony at the hearing that his left ear hearing loss is due to noise exposure in service.  Therefore, the evidence added to the record cures an evidentiary defect which existed at the time of the prior denial, namely, the lack of a diagnosed disability.  As such, the Board finds that new and material evidence has been presented and the claim is reopened.
Service Connection
Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385.
The Veteran is seeking service connection for a left ear hearing loss disability. The Veteran alleges that his hearing loss disability is the result of his active military service, including in-service noise exposure. After a careful review of the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left ear hearing loss disability is warranted.
First, the Veteran has current left ear sensorineural hearing loss disability for VA purposes. The Veteran was afforded a VA audiological examination in October 2015. At the time, puretone thresholds, in decibels, were as follows:
			HERTZ		
	500	1000	2000	3000	4000
LEFT	45	55	60	65	70

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 62.5 decibels in the left ear. The speech recognition score on the Maryland CNC word list was 92 percent for the left ear. Hearing acuity levels in the Veteran’s left ear meet the requirements of 38 C.F.R. § 3.385.
Second, the Veteran has consistently stated that he was exposed to noise during service. The Veteran stated that he was assigned to run a rifle range for a year as his first assignment, during which there were over three million rounds of 7.62 mm rifle shots fired on his range over one year. Additional lay statements from his family members confirm this assignment to a rifle range. The Veteran’s contentions are consistent with his service.  Therefore, the Board will accept that the Veteran was exposed to hazardous noise in service. As such, the second element of service connection is met.
Finally, concerning the third element of service connection, evidence of a nexus between the Veteran’s currently diagnosed left ear hearing loss disability and his service, the Veteran’s wife stated that the Veteran began experiencing hearing loss during his time in service assigned to the rifle range. The Veteran has also stated that since his separation from service, he has been a salesman and a golfer, neither of which are harmful to one’s hearing.
The Board acknowledges the October 2015 and January 2009 VA opinions that states that the Veteran’s left ear hearing loss disability is not at least as likely as not caused by or a result of an event in military service. However, the reasoning provided is inadequate and the Board accords it little probative weight. Indeed, the opinions are based primarily on the fact that hearing loss was not present at separation and did not experience any significant threshold shifts when comparing the exit exam to the entrance exam.  However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley, supra. 
Therefore, the Board finds that as the record stands, there is no competent reliable evidence which disassociates the left ear hearing loss from the confirmed noise exposure in service.  As such, service connection for left ear hearing loss disability is warranted.
REASONS FOR REMAND
Service connection for bilateral peripheral neuropathy, to include as a result of herbicide exposure, is remanded.
The Veteran argues that he incurred peripheral neuropathy as a result of his exposure to Agent Orange.
The Veteran’s in-service exposure to herbicides (Agent Orange) is presumed in light of his Vietnam service. The Board notes that peripheral neuropathy is one of the diseases associated with Agent Orange/herbicide agent exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a year of separation from service and manifested to a degree of 10 percent or more. Regardless of the presumptive provisions, direct service connection is not precluded. In other words, a regulatory established presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.
The Veteran has been diagnosed with peripheral neuropathy. A February 2015 Agent Orange Peripheral Neuropathy Check List, signed by a rating officer and a physician, indicates that there was no evidence received showing peripheral neuropathy during time of exposure or one year after his last date of exposure. The Veteran has provided lay statements noting that he began having problems with balance in 1969, the same year he returned from service. In addition, the Veteran’s private physician has opined that there are no treatable causes of his neuropathy, and it is at least as likely as not that his neuropathy is a result of his military service.
However, the Veteran has not been afforded a VA examination addressing the nature and/or etiology of his peripheral neuropathy to include any relationship to his herbicide exposure. A VA examination and opinion should be obtained. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 
According, the matters are REMANDED for the following action:
1. The Veteran must be afforded a VA examination to determine the nature and etiology of the claimed peripheral neuropathy. The electronic claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All indicated tests or studies must be completed. The examiner must describe all findings in detail.
Based on a detailed review of the evidence of record, the examiner must offer an opinion as to whether the Veteran’s peripheral neuropathy is at least as likely as not (a 50 percent or greater probability): (i) related to an injury or disease during the Veteran’s active military service and/or (ii) related or otherwise attributable to his presumed herbicide exposure regardless of whether the condition is a listed disease under 38 C.F.R. § 3.309(e).
A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested).
2. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures.

 
E. I. VELEZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Kerner, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.