Citation Nr: 18141626 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-28 925 DATE: October 11, 2018 ORDER The application to reopen the previously denied claim for service connection for bilateral hearing loss is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A July 1999 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss on the ground that the Veteran did not have hearing loss for Veterans Affairs (VA) disability purposes. 2. The Veteran did not express an intent to appeal the July 1999 rating decision and new and material evidence was not added to the record within one year of that decision. Accordingly, that decision is final. 3. The Veteran has submitted new and material evidence in support of the claim for service connection for bilateral hearing loss since the July 1999 rating decision. CONCLUSIONS OF LAW 1. The July 1999 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for reopening the Veteran’s claim for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) on an appeal from a March 2015 rating decision of the VA Regional Office (RO) in Atlanta, Georgia. New and material evidence The Veteran’s claim seeking entitlement to service connection for bilateral hearing loss was denied in a July 1999 rating decision. The Veteran did not file a notice of disagreement and took no action to appeal or seek reconsideration. Accordingly, the July 1999 rating decision is considered final. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). 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. 38 C.F.R. § 3.156(a). 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); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence for service connection for bilateral hearing loss considered at the time of the July 1999 rating decision consisted of the Veteran’s service treatment records and an April 1999 VA examination. Service connection was denied because the available testing revealed the Veteran’s hearing acuity to be normal by VA standards. The evidence received since the 1999 decision consists of the Veteran’s VA treatment records, his lay statements regarding his hearing loss and the reports of VA examinations conducted in September 2014 and March 2015. This evidence is new because it was not previously submitted and it is material because it relates to the unestablished element of the existence of a current disability. Moreover, as the March 2015 VA examination documents hearing loss for VA disability purposes, the newly submitted evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. The requirements of 38 C.F.R. § 3.156(a) have been met and the claim for service connection for bilateral hearing loss is reopened. REASONS FOR REMAND Although the Board regrets the additional delay, further development is necessary prior to adjudication of the claim of entitlement to service connection for bilateral hearing loss. The record contains evidence that the Veteran is able to establish the current disability element for service connection. Specifically, the March 2015 VA Examination determined that the Veteran has hearing loss for VA disability purposes. The Veteran is also able to establish the second element for service connection as his exposure to noise trauma in service is conceded based on his 22 years as a cannon crewmember. The Veteran related that he spent a significant amount of time on firing ranges, served as a drill sergeant and was exposed to the sound of howitzers firing while he was inside track vehicles. On the nexus element, the Board finds the March 2015 VA Examination inadequate because the examiner offered no rationale for the conclusion that it is less likely than not that the Veteran’s hearing loss was caused by or a result of an event in military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, an additional etiological opinion is necessary. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, it must ensure that the examination is adequate). Remand is appropriate to determine whether the Veteran’s documented hearing loss is causally related to his in-service noise exposure. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his bilateral hearing loss. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hearing loss is causally related to his in-service noise exposure. Please explain why or why not, specifically considering and discussing the following: (a.) The significance of the Veteran’s in-service noise exposure (as detailed above), including the impact such noise exposure would have had on the hair cells in his cochlea. (b.) Whether the extent of the Veteran’s in-service noise exposure at least as likely as not caused his bilateral hearing loss to occur sooner, or to progress to a greater degree of severity, than it would have in the absence of such noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The examiner is advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A complete rationale for the examiner’s opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 2. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim of entitlement to service connection for bilateral hearing loss. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the 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. §§ 5109B, 7112. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel