Citation Nr: 18145908 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-58 830 DATE: October 30, 2018 ORDER The Veteran’s claim for entitlement to service connection for a right wrist condition is reopened. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right wrist injury is remanded. FINDINGS OF FACT 1. An unappealed December 1968 rating decision denied entitlement to service connection for a right wrist injury. 2. New and material evidence received since the December 1968 rating decision relates to unestablished facts necessary to substantiate the Veteran’s previously denied claim of entitlement to service connection for a right wrist injury. 3. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The December 1968 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. Additional evidence received since the December 1968 rating decision is new and material, and the claim of entitlement to service connection for a right wrist disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1113; 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967. Service Connection 1. Reopening Previously Denied Claim To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). “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. Id. 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 it must raise a reasonable possibility of substantiating the claim. Id. 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). 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 this case, the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for a right wrist disability in an December 1968 rating decision. The Veteran did not submit a notice of disagreement and no new and material evidence was received by VA within one year of the issuance of the rating decision. As such, the rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the December 1968 rating decision, new and material evidence has been received in the form private treatment records and a VA examination. Therefore, to this extent only, the benefit sought on appeal is granted and the claim for service connection for a right wrist disability is reopened. 2. Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. He asserts that he had significant in-service noise exposure because he was given no hearing protection when shooting M-14s every year and infiltration training, and that he had to sleep between two running generators during field maneuvers. See September 2013 claim; August 2014 Veteran statement. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and the evidence shows that the Veteran had noise exposure while in service, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran has been given a diagnosis of bilateral hearing loss. See May 2014 VA examination report. The Veteran’s DD Form 214 shows that he was a HAWK missile crewman, consistent with in-service noise exposure. Additionally, during a July 2015 VA examination for tinnitus, a VA examiner stated that the Veteran had a high probability of in-service noise exposure. Therefore, in-service noise exposure is conceded. However, at a December 1967 medical examination, conducted at separation from service, the Veteran’s ears were clinically normal. Likewise, the Veteran reported no history of hearing loss in his December 1967 report of medical history given at separation. The Veteran was afforded a VA audiological examination in May 2014. The examiner gave a diagnosis of bilateral sensorineural hearing loss, but opined that the Veteran’s hearing loss was less likely than not related to service. The examiner noted that the Veteran had no significant threshold shift on his separation examination, and explained that delayed-onset hearing loss is unlikely, citing medical evidence for the opinion. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his bilateral hearing loss is related to in-service noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of audiological testing and interpretation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the May 2014 VA examiner’s opinion. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. REASONS FOR REMAND 1. Right Wrist The Veteran was afforded a VA examination for his right wrist condition in May 2014. The examiner stated that the Veteran did not have a diagnosed right wrist condition. However, the examiner failed to discuss the Veteran's private treatment records, which demonstrate that the Veteran underwent right wrist surgery in June 2009 for intractable distal radial ulnar joint pain with arthrosis involving the ulnar carpal as well as the radial ulnar arthrosis at distal radial ulnar joint, and an October 2013 private treatment record, which included a diagnosis of right wrist carpal tunnel syndrome. Thus, the claim must be remanded for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriately qualified clinician regarding whether the Veteran’s claimed right wrist condition is at least as likely as not (50 percent or greater probability) etiologically related to his active service, to include his claimed right wrist injury, described as lacerations, sustained in February 1966. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. A detailed rationale for any opinion 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. 2. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel