Citation Nr: 18146684 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-02 799 DATE: November 1, 2018 ORDER New and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. REMAND Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2011 rating decision denied entitlement to service connection for a bilateral hearing loss disability; the Veteran submitted a notice of disagreement to this issue but failed to timely perfect an appeal. 2. The evidence added to the record since the September 2011 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2011 rating decision denying service connection for hearing loss disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1986 to February 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Regional Office (RO). 1. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. 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) (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 it views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 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. See id. at 120-23. Having carefully reviewed the record, the Board finds that new and material evidence has been submitted to reopen the previously denied claim of service connection for bilateral hearing loss. In April 2011, the Veteran filed his initial claim for bilateral hearing loss. At that time, the Veteran generally reported that he had hearing loss due to his noise exposure in service. The claim was initially denied in a September 2011 rating decision because the evidence failed to show that the Veteran’s hearing loss was caused by or related to his service. The Veteran was notified of that decision and filed a notice of disagreement, but failed to timely perfect his appeal. Moreover, no new and material evidence was received within one-year notice of that decision. Therefore, this claim is final. Thereafter, in February 2014 the Veteran submitted a claim to reopen his service connection claim for bilateral hearing loss. Evidence in support of the request to reopen the claim includes statements by the Veteran, VA treatment records from the Minneapolis VAMC through November 2013, and a September 2013 opinion by Dr. R.R. indicating that the Veteran’s bilateral hearing loss is related to service. As the Veteran’s claim was previously denied due to no nexus, the Board concludes that the additional statements presented by the Veteran and the September 2013 positive opinion are new and material because they were not of record at the time of VA’s final rating decision in September 2011, and they raise a reasonable possibility of substantiating the Veteran’s claim. See Shade v. Shinseki, 24 Vet. App. at 121. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s previously denied claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Board notes that the Veteran contends his hearing loss disability is a result of his noise exposure in service during his work in aircraft maintenance. In the October 2018 IHP, the Veteran’s representative argued that the August 2015 VA examiner relied upon the Institute of Medicine’s 2005 report on military noise exposure. The Veteran’s representative identified additional research in the area of delayed onset hearing loss since that study. Specifically, Adding Insult to Injury: Cochlear Nerve Degeneration after Temporary Noise-Induced Hearing Loss, The Journal of Neuroscience, November 11, 2009 29(45):14077-14085 14007, was identified. The Board concludes that before a decision can be reached on this matter, a VA opinion that considers this study should be obtained. The matter is remanded for the following: (Continued on the next page)   Obtain an addendum to the August 2015 VA opinion that considers the study identified by the Veteran’s representative in the October 2018 IHP. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel