Citation Nr: 18147970 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-44 578 DATE: November 7, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for Meniere's syndrome, to include as secondary to claimed bilateral hearing loss is remanded. Entitlement to service connection for aural fullness is remanded. FINDINGS OF FACT 1. A June 2011 Board decision denied service connection for bilateral hearing loss. Though the Veteran appealed a separate issue to the Court of Appeals for Veterans Claims (Court), a February 2012 Joint Motion for Remand noted that the Veteran expressly abandoned any appeal as to his bilateral hearing loss issue. 2. Evidence added to the record since the June 2011 Board decision is not cumulative or redundant of the evidence of record at the time of the decision, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The Veteran’s current bilateral hearing loss is causally related to his in-service acoustic trauma. CONCLUSIONS OF LAW 1. The June 2011 Board decision, which denied a claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the June 2011 Board decision denying for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to May 1970, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Bronze Star Medal, the Army Commendation Medal, and the Combat Infantryman Badge. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a July 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss Pertinent procedural regulations provide that nothing in 38 U.S.C. § 5103A shall be construed to require VA to reopen a claim that has been disallowed, except when new and material evidence is presented or secured, as described in 38 U.S.C. § 5108. See 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of 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. 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. As noted above, the Board previously denied the claim of entitlement to service connection for bilateral hearing loss in June 2011 on the basis that the most probative evidence of record did not reflect that his current bilateral hearing loss was related to his active service. Though the Veteran appealed a separate issue from that decision to the Court, in a February 2012 Joint Motion, the parties specifically stipulated that the Veteran was abandoning his claim for service connection for bilateral hearing loss. The June 2011 Board decision thus became final. 38 U.S.C. § 7104(b). As the June 2011 Board decision is the last final disallowance regarding the claim, the Board must review all of the evidence submitted since that time to determine whether the Veteran’s claim should be reopened and readjudicated on a de novo basis. The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material. Justus, 3 Vet. App. at 512-13. The Veteran submitted private opinions linking his bilateral hearing loss to his military service in May 2012 and August 2013. This evidence qualifies as new as it was not of record at the time of the June 2011 rating decision. Because it speaks to the reason for the Board’s denial, it is also material. New and material evidence having been presented, the Veteran’s claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Here, the Veteran contends that he currently suffers from bilateral hearing loss that is related to his active service. For the reasons that follow, his claim shall be granted. First, both VA and private treatment records clearly demonstrate that the Veteran has been diagnosed as suffering from hearing loss for VA purposes. Second, given the Veteran’s demonstrated combat service in the Republic of Vietnam, his exposure to acoustic trauma is conceded. The first and second elements of the service connection framework are met. The Veteran’s claim has been denied on the basis that his current bilateral hearing loss is less likely than not related to his active service. There are competing opinions as to this issue. In support of his contention, the Veteran has submitted opinions from A. L. Budoff, MD. Dr. Budoff acknowledged the Veteran’s hearing loss and his exposure to acoustic trauma in service. She also cited to medical literature for the proposition that hearing loss can be delayed after the initial exposure to hazardous noise. Based on this review, in each of her opinions, Dr. Budoff concluded that the Veteran’s hearing loss is related to his active service. Again, there are contrary opinions to Dr. Budoff’s conclusion. The Board refrains from summarizing them here, however, as in weighing these opinions, the evidence would be at least in equipoise. In such situations, benefit of the doubt must be afforded to the Veteran. Doing so here resolves the final element of the service connection framework in his favor. As each element is met, service connection for bilateral hearing loss is granted. REASONS FOR REMAND 1. Entitlement to service connection for Meniere’s disease, to include as secondary to claimed bilateral hearing loss and/or service-connected tinnitus is remanded. 2. Entitlement to service connection for aural fullness to include as secondary to claimed bilateral hearing loss and/or service-connected tinnitus is remanded. Unlike above, the evidence regarding these claims is underdeveloped, and a remand is required. A June 2013 VA examiner found that the Veteran’s post-traumatic endolymphatic hydrops or aural fullness were not related to service because there is no documentation of an injury or hearing loss in service. This opinion is inadequate, as the examiner relied in the absence of an in-service injury as the main justification for her opinion. The examiner also did not provide a medical etiological opinion as to the Veteran’s claimed Meniere’s disease. Dr. Budoff, in her August 2013 opinion, simply stated that the Veteran’s in-service acoustic trauma was “responsible for [the Veteran’s] hearing loss, tinnitus, and Meniere’s syndrome.” This opinion is conclusory (as unlike with the hearing loss claim, Dr. Budoff supplied no supporting rationale), and does not address the Veteran’s claim for service connection for aural fullness. A new examination is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and possible relationship to service or to his service-connected disabilities of his claimed Meniere’s disease and aural fullness. After reviewing the record and performing all indicated studies or tests, the examiner is to answer the following questions: (a.) Does the Veteran currently suffer from Meniere’s disease and/or aural fullness? Has he suffered from either of these disabilities at any time since 2012? (b.) Is it at least as likely as not that any identified Meniere’s disease and/or aural fullness had their onset during or are otherwise related to the Veteran’s active service, to include his conceded combat related acoustic trauma? (c.) Is it at least as likely as not that any identified Meniere’s disease and/or aural fullness is secondary to the Veteran’s service-connected bilateral hearing loss or tinnitus? That is, is either claimed condition due to, the result of, or aggravated by the Veteran’s service-connected disabilities? A detailed rationale supporting the examiner’s 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel