Citation Nr: 18140625 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-20 531 DATE: October 3, 2018 ORDER New and material evidence having been submitted, the claim for service connection for right ear hearing loss is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for right ear hearing loss was previously considered and denied by the RO in a March 2003 rating decision. The Veteran did not submit a substantive appeal for that claim. 2. The evidence received since the March 2003 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for right ear hearing loss. CONCLUSIONS OF LAW 1. The March 2003 rating decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2018). 2. The evidence received subsequent to the March 2003 rating decision is new and material, and the claim for service connection for right ear hearing loss is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1979 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran requested a videoconference hearing. However, in May 2016, the Veteran cancelled this hearing request in writing. Accordingly, the Board will proceed to a decision on this appeal without such a hearing. See 38 C.F.R. § 20.704(e). Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The RO previously considered and denied the Veteran’s claim for service connection for right ear hearing loss in a March 2003 rating decision. At that time, the RO indicated that the evidence of record did not support the presence of a hearing loss condition. The Veteran did not submit a substantive appeal for the claim. Therefore, the March 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Veteran then submitted another claim for service connection for right ear hearing loss in March 2015. The RO reopened the claim, but denied service connection in a June 2015 rating decision. The evidence obtained since the March 2003 rating decision includes a diagnosis of hearing loss. Such evidence was not considered at the time of the March 2003 rating decision and relates to a previously unestablished fact. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran’s claim for service connection for right ear hearing loss. 38 C.F.R. § 3.156(a). However, as will be explained below, the Board finds that further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND Sleep apnea The Board finds that a VA examination and medical opinion are required for the sleep apnea claim. The Veteran is service-connected for PTSD with depression and has stated that his sleep apnea is caused by the PTSD. The Board finds that the Veteran should be afforded a VA examination in connection with his claim. Right ear hearing loss The Board finds that an additional medical opinion is needed to determine the etiology of the Veteran’s right ear hearing loss. The Veteran was afforded a VA examination in June 2015; however, the examiner opined that the right ear hearing loss was not due to service because he found no significant threshold shifts. Nevertheless, the examiner did not explain the significance of that fact or address the threshold shifts that did appear to occur during service and/or whether hearing loss with a delayed-onset could be related to noise exposure. Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his sleep apnea and right ear hearing loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current sleep apnea disorder that is causally or etiologically related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran has sleep apnea that is caused by or aggravated by his other service-connected disabilities, to include PTSD. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any right ear hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner is also advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should provide an opinion as to whether it is at least as likely as not that any current right ear hearing loss is causally or etiologically related to the Veteran’s military service, to include noise exposure therein. In so doing, he or she should address the significance, if any, of any thresholds shifts in service or lack thereof. In rendering this opinion, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel