Citation Nr: 18147798 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 14-39 754 DATE: November 7, 2018 ORDER The appeal to reopen a claim for service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. An unappealed January 2003 rating decision denied service connection for tinnitus. 2. Evidence received since the January 2003 rating decision that denied service connection for tinnitus is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen the claim for service connection for tinnitus. 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 in the Air Force from October 1969 to October 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified at a Board videoconference before the undersigned in May 2018. A transcript of the hearing is of record. Whether new and material evidence has been received to reopen the claim for service connection for tinnitus. The Veteran is seeking service connection for tinnitus. Service connection for tinnitus was denied in a January 2003 rating decision based essentially on a finding that service treatment records did not show a diagnosis or treatment for tinnitus and there was no medical evidence linking the Veteran’s tinnitus to his military service. The Veteran did not file a notice of disagreement, or submit new and material evidence within one year of notice of that decision; therefore, it is final. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence received since the January 2003 rating decision includes a July 2013 VA examination and a December 2013 addendum opinion regarding the etiology of the Veteran’s tinnitus and hearing loss. As the new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, and therefore raises a reasonable possibility of substantiating such claim, the Board finds that the additional evidence is both new and material. See Shade, 24 Vet. App. at 117-18. Thus, the claim for entitlement to service connection for tinnitus is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran is seeking service connection for bilateral hearing loss and tinnitus. The Veteran asserts that he was exposed to loud jet engine noise while working on aircrafts during his time in the military. He did not wear hearing protection during that time. This caused the onset of his hearing loss and tinnitus. See, e.g., November 2012 Statement in Support of Claim, October 2014 VA Form 9, and May 2018 Hearing Transcript. A review of the Veteran’s DD 214 shows that his military occupational specialty (MOS) was Airframe Repair Specialist. As the Veteran’s statements of noise exposure are consistent with his duties in the military, the Board concedes that the Veteran was exposed to loud noise while in service. The Veteran was afforded a VA examination for hearing loss and tinnitus in July 2013, and an addendum opinion was obtained in December 2013. In July 2013, the VA examiner did not provide a sufficient rationale to explain why the Veteran’s hearing loss was not related to his military service. The VA examiner reported that the current audiological test results were inconsistent and an unreliable indicator of hearing loss. Therefore, the Board will afford the Veteran another opportunity to report to a VA examination for an opinion to be rendered on the nature and etiology of his hearing loss. As for the Veteran’s claim for tinnitus, in July 2013, the VA examiner opined that the etiology of the Veteran’s tinnitus was at least as likely as not associated with hearing loss. As such, if on remand the VA examiner determines that bilateral hearing loss is at least as likely as not related to the Veteran’s service, to include noise exposure therein, then the examiner should consider whether the Veteran’s tinnitus is secondary to the bilateral hearing loss. Also, in the December 2013 addendum opinion, the VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. In her rationale, the VA examiner failed to consider the Veteran’s lay statements regarding his in-service exposure to loud noise. Therefore, on remand, the VA examiner should also address this issue. Further, the RO should obtain pertinent VA treatment records from January 2013 to present, which have not already been obtained. The Veteran testified that he had an examination regarding his hearing aids in 2016. Also, in 2014, the RO requested that an audio brain stem response test be completed. See January 2014 CAPRI. As the test results are not of record, they should also be obtained by the RO, if the test was conducted. Finally, on his October 2014 VA Form 9, substantive appeal, the Veteran reported that he had treatment for hearing loss at Scott Air Force Base in Illinois from 1970 to 1972. These records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment or private treatment records and associate them with the claims file. (a.) Specifically, the RO should obtain VA treatment records from January 2013 to present. (b.) Also, the RO should obtain the results of the audio brain stem response test requested by the RO in the Compensation and Pension Exam Inquiry, if such testing was completed. See January 2014 CAPRI. (c.) Obtain treatment records for hearing loss from Scott Air Force Base in Illinois from January 1970 to January 1972. (d.) If any of these records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. After the above records request has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to his military service, to include loud noise exposure. The Board concedes that the Veteran was exposed to loud noise during service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus is related to his military service, to include loud noise exposure. The Board concedes that the Veteran was exposed to loud noise during service. (c.) If bilateral hearing loss is determined to be related to service, then the VA examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus is (1) proximately due to or caused by the Veteran’s bilateral hearing loss; or (2) aggravated beyond its natural progression by bilateral hearing loss. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of observable symptoms over time. (d.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel