Citation Nr: 1332601 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-36 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1958 to February 1960. The Veteran also served several period of active duty for training (ACDUTRA) from 1972 to 1989. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The claims for service connection for bilateral hearing loss and tinnitus were originally denied in a February 2006 rating decision because the evidence did not show a diagnosis for hearing impairment or tinnitus. The Veteran was notified of the decision and of his appellate rights, but he did not appeal. He also did not submit any new and material evidence as to his claims within the applicable one year period. Thus, the decision became final one year after it was rendered. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Claims in unappealed RO rating decisions that are final may not be reopened except upon the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. A VA treatment note dated in December 2008 indicates that the Veteran underwent an audiological evaluation by a private audiological provider, S. & Associates. The note states that results revealed that the Veteran did not meet the VISN9 eligibility criteria for hearing aids. The audiological evaluation referred to, however, is not in the claims file. As noted above, the threshold standard to reopen claims based on new and material evidence is low. Shade 24 Vet. App at 110. To the extent that the examination report might reveal diagnoses of tinnitus and bilateral hearing loss per VA standards, the Board remands that case to obtain the S. & Associates records to determine whether it may present new and material evidence to re-open the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Obtain the S. & Associates records and associate them with the claims file. 2. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 3. Readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he shall be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence, and applicable law and regulations considered. The Veteran and his representative shall be given an opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).