Citation Nr: 1802309 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-31 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge in a Board hearing in November 2017. A copy of the transcript of that hearing has been associated with the Veteran's claims file. The claim of entitlement to service connection for bilateral hearing loss was previously denied by the RO in a February 2002 rating decision. For that reason, the Board has recharacterized the issue on appeal as set forth above. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A February 2002 rating decision denied service connection for bilateral hearing loss, the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since that February 2002 rating decision is new, neither cumulative nor redundant of the evidence that was already of record, and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The February 2002 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria to reopen the claim of entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A claim which is the subject of a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. 38 C.F.R. § 3.156(a). The requirement that additional evidence received since a prior final rating must raise a reasonable possibility of substantiating the claim is a "low threshold" requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed, unless the evidence is inherently incredible or beyond the competence of the witness. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Here, a February 2002 rating decision denied service connection for bilateral hearing loss on the basis that the available evidence did not show that the Veteran had bilateral hearing loss. The Veteran was notified of that determination and of his appellate rights, and he did not appeal or submit new and material evidence within the following year. Accordingly that decision was final based on the evidence then of record. See 38 U.S.C.A. § 7105. Relevant evidence received since that February 2002 rating decision includes: medical records reflecting physicians' determinations that the Veteran has severe, and possibly complete bilateral hearing loss; a letter received in February 2015 that was written by one of the Veteran's private physicians and indicates that the Veteran had/has total bilateral sensorineural hearing loss; the transcript of the Veteran's November 2017 Board hearing, in which he claimed that he has hearing loss as a result of his exposure to noise, chemicals and medications while in the military; and medical literature indicating that there may be a link between certain chemicals and medications that the Veteran apparently claims to have been exposed to during his service and his hearing loss. This newly received evidence is material because it pertains to unestablished facts necessary to substantiate the claim of service connection for bilateral hearing loss; namely, the existence of the Veteran's hearing loss and the nexus between it and his military service. In the Board's estimation, this evidence is new, material, and meets the "low threshold" requirement of raising a reasonable possibility of substantiating the Veteran's claim. Thus, the Board finds that the claim of entitlement to service connection for bilateral hearing loss may be reopened. To that extent only, the appeal is granted. The merits of this issue, as well as additional development and adjudication necessary to fulfill the Board's duties to notify and assist the Veteran, will be addressed on remand. ORDER The issue of entitlement to service connection for bilateral hearing loss is reopened. REMAND As mentioned above, the Veteran has claimed that his bilateral hearing loss resulted from a combination of his exposure to noise, chemicals and medications while in the military. See, e.g., Transcript of Hearing Before the Board, dated in November 2017. The Veteran has cited to and submitted relevant medical literature. See, e.g., correspondence received in November 2017. The VA examination reports of record (specifically including the October 2010 Compensation and Pension Exam Report for the Veteran's hearing loss and tinnitus) do not explicitly address the Veteran's contentions that his hearing loss was caused by his claimed in-service exposure to noise and chemicals and medications. The Board finds that a VA audiological examination opinion addressing those contentions is necessary under 38 C.F.R. § 3.159(c)(4) in adjudicating this claim under the various theories advanced by the Veteran. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA audiological examination to determine the etiology of the Veteran's bilateral hearing loss. The entire claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed, all findings should be reported in detail, and all opinions must be supported by a rationale. The examiner is specifically asked to address whether the Veteran's bilateral hearing loss is at least as likely as not (a 50 percent or greater probability) etiologically related to active service. In reaching an opinion, the examiner is asked to consider: (a) that the Veteran left active service in March 1955; (b) that he had an acoustic neuroma removed in or about 1976, according to his VA and private treatment records; (c) the medical literature submitted by the Veteran in November 2017; and (e) the Veteran's claim that his exposure to noise, chemicals and medications during his military service, in combination, caused his bilateral hearing loss. 2. After completing the above actions, and any other indicated development, the issue of entitlement to service connection for bilateral hearing loss must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the appeal must then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on this matter. 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 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs