Citation Nr: 0001435 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-06 881 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss of the right ear. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from May 1986 to August 1991. A March 1992 RO rating decision denied service connection for hearing loss of the right ear on the basis that the veteran's hearing loss was not so severe as to be considered a disability for VA purposes. The veteran was notified of this decision, and he filed an appeal. In August 1995, the veteran withdrew his claim for service connection for hearing loss of the right ear. This matter comes to the Board of Veterans' Appeals (Board) from an April 1998 RO rating decision that denied service connection for bilateral hearing loss. The veteran submitted a notice of disagreement in April 1998, and the RO issued a statement of the case in April 1998. The veteran submitted a substantive appeal in May 1998, and restricted his appeal to service connection for hearing loss of the right ear. The veteran testified at a hearing in August 1998. The RO hearing officer then denied service connection for hearing loss, right ear. FINDINGS OF FACT 1. A March 1992 rating decision by the RO considered the merits of the veteran's claim and denied service-connection for right ear hearing loss; the veteran withdrew an appeal as to that determination. 2. Evidence submitted since the March 1992 rating decision includes a VA audiological evaluation, which is neither cumulative nor redundant and is of such significance, that it must be considered in connection with all the evidence to fairly decide the merits of the claim. 3. Hearing loss of the right ear had its onset in service. CONCLUSIONS OF LAW 1. Evidence received since the March 1992 rating determination by the RO, which denied service-connection for a right ear hearing loss is new and material and the veteran's claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The veteran's claim for service connection for a right ear hearing loss is well grounded. 38 U.S.C.A, § 5107(a) (West 1991). 3. Sensorineural hearing loss of the right ear was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.309, 3.385 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A. Factual Background The veteran had active service from May 1986 to August 1991. Service medical records at the time of the veteran's enlistment examination in May 1985 reveal that the veteran's hearing was 15/15, bilaterally, for whispered voice. Service medical records reveal that the veteran underwent annual audiometric screening. Records show that the veteran was on shipboard duty and in communications, which he reported was quite noisy and that he wore ear plugs for protection. Records dated in December 1987 and in January 1988 reflect a moderate to severe hearing deficit for the veteran's right ear, and note that "Stenger" was positive at 1000 hertz and 2000 hertz; speech reception thresholds were essentially within normal limits bilaterally. The final, pure tone average threshold for the right ear at that time was 17 decibels. Service medical records show that the veteran underwent audiometric testing on various dates, including in December 1987, January 1988, April 1988, and July 1988. Reports of the audiometric testing reveal pure tone thresholds, in decibels, for the right ear on those dates were as follows: HERTZ 500 1000 2000 3000 4000 12/87 45 45/45 50 40 45 1/88 60 70 70 60 65 4/88 90 65/65 85 90 100 7/88 10 10 10 10 10 Service medical records at the time of the veteran's separation examination in July 1991 show that he underwent audiometric testing. Subjective complaints of hearing loss at that time were not considered disabling, and the audio was essentially within normal limits. The report of the audiometric testing reveals pure tone thresholds, in decibels, for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 15 Post-service medical records show that the veteran reported difficulty hearing in May 1992. It was noted that the veteran had a long term hearing deficit in his right ear. The veteran was diagnosed with hearing deficit, right ear, and was referred to the audiology clinic. A consultation report reflects that veterans who were not eligible for hearing aids were not being seen in the audiology clinic at that time. VA medical records show that the veteran underwent audiometric testing in December 1997. The veteran reported periodic tinnitus and lightheadedness. The report of the audiometric testing reveals pure tone thresholds, in decibels, for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 35 30 Speech audiometry revealed speech recognition ability of 88 percent in the right ear. The examiner's assessment was mild to moderate sensorineural hearing loss of the right ear. VA medical records show that the veteran underwent an auditory brainstem response (ABR) procedure in January 1998 to assess an asymmetric loss affecting the right ear and the complaint of dizziness. The impression was normal ABR study. VA medical records show that the veteran was issued a hearing aid for the right ear in March 1998. An April 1998 letter from Janet C. Bogus, Ph.D., a VA Clinical Audiologist, confirms that the veteran has a mild sensorineural hearing loss in the right ear. The veteran testified at a hearing in August 1998. He testified that he served in active duty aboard the USS Nimitz, an aircraft carrier. The veteran testified that an audiometric screening in December 1987 revealed hearing loss due to noise exposure. The veteran was taken off the ship and placed on shore duty for three months, and then transferred to Annapolis, Maryland. The veteran also testified that an audiometric screening in April 1988 revealed hearing loss in both ears. B. Legal Analysis As an initial matter, it is again noted that in a March 1992 rating decision, the RO denied a claim of entitlement to service connection for a right ear hearing loss. A review of that determination reveals that the RO essentially found that while the veteran had a slight hearing loss, it was not a disability as defined for VA purposes. In August 1995 the veteran withdrew an appeal as to this determination and the March 1992 rating decision became final. 38 U.S.C.A. § 7105. However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. 38 U.S.C.A. § 5108. Additional evidence was subsequently obtained, and in April 1998, the RO apparently reopened the veteran's claim for a right ear hearing loss and denied it on the merits. This appeal ensued. Despite the RO's denial of this claim on the merits, the Board must consider whether new and material evidence has been submitted before any consideration of the merits of the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). When a claimant seeks to reopen a claim based upon additional evidence, VA must perform a two-step analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, VA must determine whether the evidence is new and material. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge v. West , 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the second step of the Manio analysis requires VA to reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. In such a determination, VA must evaluate the merits of the claim in light of all the evidence, both new and old. The United States Court of Veterans Appeals (Court) has held that in order to reopen a claim, there must be new and material evidence presented or secured since the last determination denying the benefit sought. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Accordingly, the Board must consider whether new and material evidence has been received since the RO's July 1996 decision. Evidence of record at the time of the RO's March 1992 decision included service medical records and a VA examination report to include a report of a VA audiological evaluation. The RO denied the claim in March 1992, noting that the veteran had not submitted evidence showing a right ear hearing disability for VA purposes. Evidence received since the RO's March 1992 decision includes a VA audiological evaluation dated in December 1997 disclosing right ear hearing impairment, which is recognized by VA as representing disability. In the April 1998 rating decision, the RO apparently determined that new and material evidence had been received to reopen the veteran's claim for a right ear hearing loss. After reviewing the record from a longitudinal perspective, the Board agrees and finds that new and material evidence has been received to reopen the veteran's claim as to this disorder. The December 1997 VA audiological evaluation was clearly not of record at the time of the RO's March 1992 decision, and is "new" within the meaning of Manio, supra. The Board further finds that this evaluation of the veteran's hearing is probative of the issue at hand, and is thus material. The Board therefore concludes that the additional evidence is new and material and sufficient to reopen the veteran's claim for a back disorder. The veteran's claim for a back disorder is therefore reopened. Having found the claim reopened the Board also finds, in view of a hearing deficit in service and current clinical findings, that the veteran's claim is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. Service medical records of the veteran's entry are negative of hearing loss, and the Board presumes the veteran to have been in sound condition in 1986. Parker v. Derwinski, 1 Vet. App. 522 (1991). The evidence shows that the veteran currently has hearing loss of the right ear which meets the criteria of 38 C.F.R. § 3.385 (1999). VA audiometric testing in December 1997 shows that the auditory thresholds for the frequencies 2000, 3000, and 4000 are greater than 26 decibels, and that the speech recognition score for the right ear is less than 94 percent. Hence, service connection can be granted for this condition if it can be linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Service medical records reveal that the veteran had a moderate to severe hearing deficit for the right ear in late 1987 and in early 1988. Service medical records also reveal that in the July 1991 audiometric evaluation of the veteran's right ear at the time of separation, the veteran had auditory decibel thresholds in excess of 20 in at least one of the frequencies from 500 to 4,000 hertz. By some medical authorities, auditory decibel thresholds of zero to 20 represent normal hearing, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Likewise, post-service medical records show that the veteran reported difficulties hearing in May 1992, which was within one year of his discharge from service. The record appears to indicate that the veteran did not undergo evaluation, as recommended at the time, at the VA's audiology clinic. For purposes of this decision, the Board will assume that the veteran had some level of hearing loss affecting his right ear in May 1992. In addition, sensorineural hearing loss is a "chronic disease" within the meaning of 38 C.F.R. § 3.309(a) (an "other organic disease of the nervous system"). When a chronic disease is shown in service, subsequent manifestations of the same disease are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Furthermore, where threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In such cases, consideration is given as to whether there is a medically sound basis to attribute the post- service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Id. Here, the record includes evidence that the veteran had a moderate to severe hearing deficit of the right ear in service. There is no evidence of any intercurrent causes. The veteran asserts that he has hearing loss of the right ear, due to noise exposure aboard the USS Nimitz. Service medical records reflect that the veteran was reassigned to "light duty to remain in noise free environment" in January 1988. The veteran also testified that he was taken off the ship and reassigned to duty on shore, following a December 1987 audiometric screening. Records show that a "Hearing Conservation Program" was in effect aboard the USS Nimitz and that the veteran wore hearing protectors. The Board accepts this evidence as proof of noise exposure in service. Moreover, this evidence, when considered with the overall medical evidence that indicates some degree of right ear hearing loss beginning in 1987, supports granting service connection for hearing loss of the right ear. Having considered all the evidence, the Board finds that it is essentially in equipoise as to whether or not the veteran's hearing loss of the right ear had its onset in service. Under the circumstances, the veteran prevails as to his claim for service connection for hearing loss of the right ear with application of the benefit of the doubt in his favor. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the claim for service connection for hearing loss of the right ear is reopened and granted. R. E. Smith Acting Member, Board of Veterans' Appeals