Citation Nr: 1335109 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-03 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss disability and if so whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus and if so whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from November 1967 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. By the decision below, previously denied claims for service connection for hearing loss and tinnitus are reopened. The underlying claims for service connection are the subjects of a remand that follows the decision. FINDINGS OF FACT 1. The Veteran did not file a notice of disagreement with a June 2006 rating decision denying service connection for hearing loss and tinnitus, or submit any pertinent evidence within the appeal period. 2. The evidence received more than one year after the Veteran was notified of the June 2006 rating decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claims. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In an unappealed rating decision issued in June 2006, the RO denied service connection for hearing loss and tinnitus because of the absence of medical evidence showing that the Veteran has hearing loss or tinnitus that either occurred in or was caused by his military service. The evidence of record at the time of the June 2006 rating decision included the Veteran's service treatment records, which showed no evidence of the claimed disabilities and that the Veteran's ears and hearing were found to be normal on the examination for separation. Also of record was an application for benefits from the Veteran wherein he indicated that his hearing loss and tinnitus began in October 2005. The evidence added to the record since the prior denial includes statements from the Veteran, dated in July 2011, August 2011 and December 2011. In the statements, he recalls that he was exposed to loud noise during his service in Vietnam, and that the inception of his hearing loss and tinnitus was at that time. Evidence showing that the Veteran has hearing loss or tinnitus that began during his active service was an element of entitlement to service connection that the RO found was not met in June 2006 as the Veteran had indicated the onset was in 2005. The Board finds that the recent statements by the Veteran are new and material as they are not cumulative or redundant of the evidence previously of record, and they relate to a previously unestablished element of entitlement to service connection for hearing loss and tinnitus. This is particularly so when the credibility of the statements is presumed for the purpose of the new and material evidence analysis. See Justus, 3 Vet. App. at 513. Accordingly, reopening of the claims is in order. ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is granted. The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for tinnitus is granted. REMAND The Veteran contends that he has hearing loss and tinnitus as a result of exposure to loud noise during active service. Although his military occupational specialty was personnel specialist, he states that he stood guard every two days when he was stationed in Vietnam. The Veteran recalls that he was exposed to the noise from gun fire and artillery fire at that time. The November 2011 VA examiner addressed the possibility of a relationship between the Veteran's current hearing loss and tinnitus. The examiner noted that the Veteran reported being exposed to loud noise during active service, but that he also reported that the onset of symptoms was six or seven years prior to the examination. The examiner provided an opinion that the Veteran's hearing loss and tinnitus are less likely than not related to his military service. In his statements in support of the claims, the Veteran indicated that he had experienced hearing loss and tinnitus for much longer than the six or seven years noted by the examiner. The Veteran indicated that his history was not accurately reported by the examiner as his problems began in active service rather than later on. "An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."" D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). In the Veteran's case, the November 2011 VA opinion may not be wholly adequate as it may have been based on an incorrect history of the onset of symptoms of hearing loss and tinnitus. Therefore, the Board finds that the claims should be remanded for another VA audiological examination and an etiological opinion. Accordingly, this case is REMANDED to the RO or the Appeals Management Center in Washington, D.C., for the following actions: 1. The RO or the AMC should arrange for the Veteran to undergo a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran's claimed hearing loss and tinnitus. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on the review of the Veteran's pertinent history and the examination results, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the Veteran's hearing loss and tinnitus are related to his active service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner should specifically indicate whether the Veteran's hearing impairment and tinnitus are consistent with exposure to loud noise and if so, the examiner should elicit history from the Veteran concerning his in-service noise exposure and any post-service noise exposure. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 2. The RO or the AMC should undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the claims. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs