Citation Nr: 18142468 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-07 043 DATE: October 15, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for hearing loss of the right ear is granted. REMANDED Entitlement to service connection for hearing loss of the right ear is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. An October 2007 rating decision denied entitlement to service connection for bilateral hearing loss. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since October 2007, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for hearing loss of the right ear. CONCLUSIONS OF LAW 1. The October 2007 rating decision, which denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 2. The additional evidence received since the October 2007 rating decision is new and material, and the claim of entitlement to service connection for hearing loss of the right ear is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1973 to September 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing in January 2018, which the Veteran subsequently cancelled. 1. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for hearing loss of the right ear is granted. 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 evidence means existing evidence not previously submitted to VA. Material evidence means existing 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In an October 2007 rating decision, the RO denied the claim of entitlement to service connection for bilateral hearing loss. See October 2007 Rating Decision – Narrative. Specifically, the RO determined that based on the September 2007 VA examination the Veteran had normal hearing for VA purposes in the right ear. As such, the Veteran was denied entitlement to service connection for hearing loss. Since the October 2007 rating decision, the Veteran submitted a medical opinion from Dr. B, an audiologist, that stated that the Veteran’s hearing loss was likely caused by his military noise exposure. See June 2012 Medical Treatment Record – Non-Government Facility. In addition, the Veteran was afforded a VA examination in December 2012. The Board finds this evidence to be new and material evidence because it was not of record at the time of the final RO decision in October 2007, and indicates the Veteran’s hearing loss may be related to his military noise exposure. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss of the right ear and as such the claim is now reopened. See Shade, 24 Vet. App. 110. REASONS FOR REMAND The Board’s review of the claims file reveals that further action on the claims of entitlement to service connection for hearing loss of the right ear and entitlement to an initial compensable rating for hearing loss of the left ear is needed. A review of the records show that the December 2012 VA examiner opined that the Veteran’s bilateral hearing loss is at least as likely as not caused by or a result of an event in military service. The examiner supported her opinion by stating that the service treatment records noted a decline in the Veteran’s hearing acuity. However, despite this opinion, the RO denied service connection for the Veteran’s hearing loss of the right ear as the Veteran’s hearing loss was at a level that was not considered to be a disability for VA purposes. The Veteran argued that the December 2012 VA examination was administrated incorrectly. Specifically, the Veteran stated that the examiner instructed the Veteran to “guess” during the audiology exam. See January 2015 VA 21-4138 Statement in Support of Claim and January 2015 NOD. The Veteran further explained that he had ringing in his ears such that he was unsure if he was hearing the audio tones or the ringing in his ears. See February 2015 Form 9. In addition, the Veteran alleged that his hearing worsened since the December 2012 VA examination. See August 2018 Appellate Brief. The Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his bilateral hearing loss. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to evaluate his claim for service connection for hearing loss in the right ear. After examining the Veteran and reviewing the claims file, the examiner must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s hearing loss in the right ear had its onset in service or is otherwise related to service, to include in-service noise exposure. The examiner must also address the current severity of the Veteran’s service-connected hearing loss of the left ear. The impact of his hearing loss on his daily life and ability to gain and maintain employment should be addressed. (Continued on the next page)   A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel