Citation Nr: 18145845 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-00 617 DATE: October 30, 2018 ORDER New and material evidence has been received, the claim of entitlement to service connection for bilateral hearing loss is reopened, and to that extent only, the appeal is granted. New and material evidence has been received, the claim of entitlement to service connection for hypertension is reopened, and to that extent only, the appeal is granted. REMANDED The reopened claim of entitlement to service connection for bilateral hearing loss is remanded. The reopened claim of entitlement to service connection for hypertension, to include as due to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. By an April 2009 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for bilateral hearing loss; he was advised of the RO’s decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO’s decision within one year; nor was new and material evidence received within one year. 2. Additional evidence received since the RO’s April 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 3. By a June 2010 rating decision, the RO denied the Veteran’s claim for service connection for hypertension; he was advised of the RO’s decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO’s decision within one year; nor was new and material evidence received within one year. 4. Additional evidence received since the RO’s June 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 3. The June 2010 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence has been received to reopen the Veteran’s claim for service connection for hypertension. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1967. This case is before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and June 2010 rating decisions of a Department of Veterans Affairs (VA) RO. VA has conceded that the Veteran was exposed to acoustic trauma during his military service. In October 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of hearing is of record. New and Material Evidence The Veteran seeks entitlement to service connection for bilateral hearing loss and hypertension. He contends that new and material evidence, sufficient to reopen the previously disallowed claims of service connection, has been received. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2018). Pursuant to 38 U.S.C. § 5108 (2012), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2018). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108 (2012); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss In the present case, the RO, by a decision entered in April 2009, denied the Veteran’s claim for service connection for bilateral hearing loss on the grounds that his hearing loss disability was not related to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within one year. 38 C.F.R. § 3.156(b) (2018). As a result, the RO’s decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the time of the RO’s April 2009 rating decision includes the Veteran’s hearing testimony and a positive medical opinion indicating that his current hearing loss is related to service. Specifically, a September 2014 private opinion from Dr. R.A.C. indicated that the Veteran suffers from a severe to profound high frequency sensorineural hearing loss that is at least as likely as not a result of his noise exposure in the military. Dr. R.A.C. based this on the Veteran’s noise exposure history while in the military, from 1965 to 1967, and the lack of significant exposure in subsequent years. The physician noted that the Veteran’s exposure to noise from helicopter turbines, small arms and mortars, and subsequent development in later years of hearing loss is consistent with research published in the last ten years (Kujawa and Liberman, 2006). For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A VA audiological examination from February 2012 indicated that the Veteran’s pure tone thresholds at the time of this examination were 15, 30, 70, 80 and 95, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, on the right side; and 10, 20, 30, 60 and 60, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, on the left side. Although this examination indicates that the Veteran has a hearing loss disability, for VA purposes, this examination is inadequate, as no actual opinion was provided to address the cause of his bilateral hearing loss. As the RO denied the Veteran’s claim, noting the Veteran’s hearing loss was not related to service, this new evidence supports the contention that the Veteran has a current hearing loss disability that may be directly related to his military noise exposure. This evidence was not present at the time of the April 2009 rating decision, and it relates to an unestablished fact necessary to substantiate the claim for service connection; moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, this evidence is sufficient to reopen the previously-denied claim of entitlement to service connection for bilateral hearing loss, and the claim is reopened. 38 C.F.R. § 3.156 (2018). For reasons described below, however, a remand is required before a final decision is made. 2. Whether new and material evidence has been received to reopen a claim of service connection for hypertension Here, the RO, by a decision entered in June 2010, denied the Veteran’s claim for service connection for hypertension on the grounds that there was no objective evidence linking his condition to military service, no evidence that his condition was diagnosed within one year of discharge, and he was not service connected for anything to be granted secondary service connection. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within one year. 38 C.F.R. § 3.156(b) (2018). As a result, the RO’s decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the time of the RO’s June 2010 rating decision includes hearing testimony and a positive medical opinion regarding the Veteran’s current hypertension being secondary to his service-connected PTSD. Specifically, a June 2014 private opinion from Dr. M.E. indicated that is more likely than not that his hypertension was secondary to, or being aggravated by his service-connected PTSD. Dr. M.E. further noted that this was because his blood pressure control became problematic after his diagnosis of PTSD, and not before. As the RO denied the Veteran’s claim, noting his hypertension was not related to service or secondary to any condition because he was not service connected for any disabilities, this evidence supports the contention that the Veteran currently has hypertension that may be secondary to his service-connected PTSD. This evidence relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND The reopened claims of entitlement to service connection for bilateral hearing loss and hypertension are remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 1. Entitlement to service connection for bilateral hearing loss is remanded. As noted earlier, the Veteran claims that his bilateral hearing loss is a result of his military service, to include his conceded exposure to excessive levels of noise. The Veteran’s February 2012 VA examination demonstrates that he is diagnosed with bilateral hearing loss. However, as an opinion was not provided regarding whether his hearing loss was related to service; therefore, the examination was inadequate. A favorable September 2014 opinion, as provided by R.A.C., M.S., F-AAA, is of record and opined that the Veteran’s bilateral hearing loss is at least as likely as not a result of his noise exposure during his military service. In providing this opinion, however, there was no discussion of the many years that passed between the Veteran’s military service and the diagnosis of bilateral hearing loss, and only notes that subsequent development in later years of hearing loss is consistent with research published in the last ten years. Additional VA examination is necessary to address the cause of the Veteran’s bilateral hearing loss. 2. Entitlement to service connection for hypertension, to include as due to service-connected posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that his hypertension is secondary to his service-connected PTSD. The evidence of record notes a current diagnosis of hypertension since 2006. The Veteran has been afforded VA examination to determine whether his current hypertension is related to his service-connected PTSD. In a July 2014 VA examination, the examiner indicated that the Veteran’s hypertension was less likely than not proximately due to, the result of, or aggravated by his PTSD, tinnitus, erectile dysfunction or Parkinson’s disease. The examiner noted that there was no demonstrable evidence that the cited conditions cause, result in, or aggravate hypertension. Hypertension one acquires with age and there was no ample evidence to support the claim. In a subsequent July 2014 addendum, the examiner was asked to indicate whether the Veteran’s hypertension was at least as likely as not aggravated beyond its natural progression by his service-connected PTSD. However, the examiner did not answer this question. In an August 2014 addendum opinion, the examiner indicated that the Veteran’s current hypertension condition is not mentioned as being caused or aggravated by his service-connected disabilities or the medications he takes for them; and as it pertains to medical knowledge of essential hypertension and a review of the Veteran’s records, his hypertension is less likely as not proximately due to or the result of, or aggravated by his service-connected disabilities. In a December 2014 VA examination, the examiner indicated that the Veteran’s claimed hypertension is less likely than not proximately due to or the result of his service-connected conditions. The examiner noted that there was no medication included in the examination request, and review of the record revealed medications, but it was unclear which were being used to treat what conditions. As such, an addendum opinion is needed to determine whether the Veteran has a current condition of hypertension, and whether it is secondary to his service-connected disabilities, to include PTSD, or medication prescribed for service-connected disability. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his claimed disabilities. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained, to include all relevant updated VA medical records and any available private treatment records. 2. After obtaining any outstanding records, obtain addendum opinions regarding the Veteran’s bilateral hearing loss and hypertension disabilities. The need for examination is left to the determination of the examining individual. The claims file should be provided for review. Provide opinions that address the following: Bilateral Hearing Loss Is it at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss began in service, or is otherwise the result of his military service, to include his conceded exposure to excessive levels of noise? The examiner is notified that the Veteran’s exposure to acoustic trauma in service is conceded and his statements regarding his in-service issues with hearing loss and continuity of symptomatology are credible. In offering any opinion, the examiner must consider the full record, to include the Veteran’s credible lay statements. The rationale for any opinion offered should be provided. Hypertension The examiner should be provided a list of all medications prescribed for the Veteran’s service-connected disabilities since April 2014, or medical records which include this information. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is of service onset, manifested to a compensable degree within one year of service discharge or is otherwise the result of his military service? Notwithstanding the above, is it at least as likely as not (50 percent probability or greater) that his hypertension was caused or aggravated beyond its natural progression by his service-connected disabilities, to include PTSD? The opinion must address both causation and aggravation, as these are two separate inquiries. In offering any opinion, the examiner must consider the full record, to include the Veteran’s credible lay statements. The rationale for any opinion offered should be provided. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel