Citation Nr: AXXXXXXXX Decision Date: 09/30/20 Archive Date: 09/30/20
DOCKET NO. 190809-18729 DATE: September 30, 2020
ORDER
The April 2020 Board decision dismissing the Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) is vacated.
New and relevant evidence has been received to warrant readjudication of the Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss).
Entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) is denied.
FINDINGS OF FACT
1. The Veteran properly perfected his appeal for entitlement to service connection for left ear hearing loss and vacatur of the April 2020 Board decision and adjudication of the Veteran’s claim is warranted.
2. An August 2009 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss. The Veteran was notified of that decision and did not appeal or submit new and relevant evidence within one year of that rating decision.
3. The evidence received since the August 2009 rating decision is new and relevant evidence.
4. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss (also claimed as left ear hearing loss) at any time during or approximate to the pendency of the claim.
CONCLUSIONS OF LAW
1. The April 2020 Board decision denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) based on lack of jurisdiction is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. 20.1000.
2. The August 2009 rating decision denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. §7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103.
3. The additional evidence received since the August 2009 rating decision is considered new and relevant; readjudication of the claim for entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C §5108; 38 C.F.R. §§ 3.156(a).
4. The criteria for service connection for bilateral hearing loss, also claimed as left ear hearing loss, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1977 to September 1997
These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for appeals of VA decisions. In his August 2019 decision review request, the Veteran elected direct review by a Veterans Law Judge, based on the evidence of record before the agency of original jurisdiction (AOJ). The Veteran was informed that he was not entitled to a hearing and that the Board will not consider any evidence added to the file after the decision on appeal.
Vacatur
Legal Criteria
An appellate decision may be vacated by the Board of Veterans’ Appeals at any time upon request of the appellant or her representative, or the Board’s own motion, on the following grounds: (a) denial of due process (b) allowance of benefits based on false or fraudulent evidence. 38 CFR § 20.1000.
Analysis
1. The previous Board decision dismissing the Veteran's claim for entitlement to service connection for bilateral hearing loss is vacated.
In an April 2020 Board decision the Board found that it lacked jurisdiction to adjudicate the Veteran’s claim, noting that the Veteran had not perfected an appeal under either the AMA or a legacy system; the Veteran’s claim was dismissed. Following that decision, in May 2020 the Veteran clarified his intent to appeal the March 2019 rating decision denying service connection for bilateral hearing loss also claimed as left ear hearing loss. The Board, resolving reasonable doubt and viewing the record in the light most favorable to the Veteran finds that the May 2020 clarification letter establishes jurisdiction for the Veteran’s claim to be adjudicated, as denying the Veteran’s claim would constitute a due process error. 38 CFR § 20.1000. As such, the April 2020 Board decision denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss based on lack of jurisdiction is vacated.
Readjudication
To reopen a claim which has been denied by a final decision, the claimant must present new and relevant evidence. New evidence means existing evidence not previously submitted to VA. Relevant evidence is evidence that tends to prove or disprove a matter. 38 U.S.C. § § 5108.
2. New and relevant evidence has been received to warrant readjudication of the Veteran's claim.
The Veteran’s claim was most recently denied in April 2009, based on no current disability. The Veteran did not appeal that decision or submit new and relevant evidence within one year of the decision. Accordingly, the April 2009 rating decision is final. Since the April 2009 rating decision, new and relevant evidence has been received, namely, a February 2019 VA examination for hearing loss. As this evidence is new, and preponderates for or against the Veteran’s claim, it constitutes new and relevant evidence to warrant readjudication of the Veteran’s claim.
The Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) is readjudicated.
Service Connection
Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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 disease was incurred in service. 38 C.F.R. § 3.303(d).
Sensorineural hearing loss is recognized by VA as chronic diseases under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, Vet. App.
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Citation Nr: AXXXXXXXX Decision Date: 09/30/20 Archive Date: 09/30/20
DOCKET NO. 190809-18729 DATE: September 30, 2020
ORDER
The April 2020 Board decision dismissing the Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) is vacated.
New and relevant evidence has been received to warrant readjudication of the Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss).
Entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) is denied.
FINDINGS OF FACT
1. The Veteran properly perfected his appeal for entitlement to service connection for left ear hearing loss and vacatur of the April 2020 Board decision and adjudication of the Veteran’s claim is warranted.
2. An August 2009 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss. The Veteran was notified of that decision and did not appeal or submit new and relevant evidence within one year of that rating decision.
3. The evidence received since the August 2009 rating decision is new and relevant evidence.
4. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss (also claimed as left ear hearing loss) at any time during or approximate to the pendency of the claim.
CONCLUSIONS OF LAW
1. The April 2020 Board decision denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) based on lack of jurisdiction is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. 20.1000.
2. The August 2009 rating decision denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. §7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103.
3. The additional evidence received since the August 2009 rating decision is considered new and relevant; readjudication of the claim for entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C §5108; 38 C.F.R. §§ 3.156(a).
4. The criteria for service connection for bilateral hearing loss, also claimed as left ear hearing loss, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1977 to September 1997
These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for appeals of VA decisions. In his August 2019 decision review request, the Veteran elected direct review by a Veterans Law Judge, based on the evidence of record before the agency of original jurisdiction (AOJ). The Veteran was informed that he was not entitled to a hearing and that the Board will not consider any evidence added to the file after the decision on appeal.
Vacatur
Legal Criteria
An appellate decision may be vacated by the Board of Veterans’ Appeals at any time upon request of the appellant or her representative, or the Board’s own motion, on the following grounds: (a) denial of due process (b) allowance of benefits based on false or fraudulent evidence. 38 CFR § 20.1000.
Analysis
1. The previous Board decision dismissing the Veteran's claim for entitlement to service connection for bilateral hearing loss is vacated.
In an April 2020 Board decision the Board found that it lacked jurisdiction to adjudicate the Veteran’s claim, noting that the Veteran had not perfected an appeal under either the AMA or a legacy system; the Veteran’s claim was dismissed. Following that decision, in May 2020 the Veteran clarified his intent to appeal the March 2019 rating decision denying service connection for bilateral hearing loss also claimed as left ear hearing loss. The Board, resolving reasonable doubt and viewing the record in the light most favorable to the Veteran finds that the May 2020 clarification letter establishes jurisdiction for the Veteran’s claim to be adjudicated, as denying the Veteran’s claim would constitute a due process error. 38 CFR § 20.1000. As such, the April 2020 Board decision denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss based on lack of jurisdiction is vacated.
Readjudication
To reopen a claim which has been denied by a final decision, the claimant must present new and relevant evidence. New evidence means existing evidence not previously submitted to VA. Relevant evidence is evidence that tends to prove or disprove a matter. 38 U.S.C. § § 5108.
2. New and relevant evidence has been received to warrant readjudication of the Veteran's claim.
The Veteran’s claim was most recently denied in April 2009, based on no current disability. The Veteran did not appeal that decision or submit new and relevant evidence within one year of the decision. Accordingly, the April 2009 rating decision is final. Since the April 2009 rating decision, new and relevant evidence has been received, namely, a February 2019 VA examination for hearing loss. As this evidence is new, and preponderates for or against the Veteran’s claim, it constitutes new and relevant evidence to warrant readjudication of the Veteran’s claim.
The Veteran’s claim for entitlement to service connection for bilateral hearing loss (also claimed as left ear hearing loss) is readjudicated.
Service Connection
Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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 disease was incurred in service. 38 C.F.R. § 3.303(d).
Sensorineural hearing loss is recognized by VA as chronic diseases under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, Vet. App. 258 (2015). Where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).
For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 ae 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).
3. Entitlement to service connection for bilateral hearing loss also claimed as left ear hearing loss.
The Veteran contends that he is entitled to service connection for hearing loss, based on an in-service injury to his left ear.
Notwithstanding the Veteran’s contentions, the evidence of record shows that the Veteran does not have a current disability for VA purposes.
The Veteran was afforded a VA examination for hearing loss in February 2019. Audiological results were as follows:
HERTZ
500 1000 2000 3000 4000
RIGHT 10 15 10 15 20
LEFT 10 15 10 20 20
Speech discrimination scores were 96 percent, bilaterally.
The Veteran’s hearing loss does not meet any of the criteria set forth in 38 C.F.R. § 3.385. As such he does not have a current hearing loss disability for VA purposes.
The record contains no other evidence which establishes a current hearing loss disability as defined in 38 C.F.R. § 3.385.
Absent a current disability, service connection for bilateral hearing loss cannot be established.
(Continued on the next page)
Entitlement to service connection for bilateral hearing loss, also claimed as left ear hearing loss, is denied.
Jennifer White
Veterans Law Judge
Board of Veterans’ Appeals
Attorney for the Board A. Wimbish, Associate Counsel
The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.