Citation Nr: 18148194 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-16 336 DATE: November 8, 2018 ORDER 1. New and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss disability has not been received, and the application for reopening the claim is denied. REMANDED 2. Entitlement to service connection for steatohepatitis with cirrhosis, as being secondary to type II diabetes mellitus, is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the regional office (RO) denied service connection for bilateral hearing loss disability based on a finding that the current bilateral hearing loss disability was not related to service. The Veteran was informed of the decision along with his appeal rights. He did not appeal the decision and did not submit new and material evidence within one year of the decision. The May 2011 rating decision is final. 2. Evidence received since the May 2011 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, and therefore, does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss disability has not been added to the record. 38 U.S.C. § 5108, 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from June 1968 until March 1972 and from July 1972 until May 1973. The Veteran was afforded a hearing in May 2018. In the post-hearing submission of argument from the Veteran’s attorney, she wrote that the Veteran should be granted service connection for tinnitus. As neither the Veteran nor his attorney have filed an application to reopen the previously denied claim for service connection for tinnitus, the Board does not have jurisdiction over this issue. If the Veteran wishes to file an application to reopen the claim for service connection for tinnitus, he must do so formally. New and Material Evidence—Generally Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. 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 whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also 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. Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must address the issue of whether new and material evidence has been received in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss In April 2009, the Veteran filed a claim for service connection for bilateral hearing loss. In September 2009, the RO issued a rating decision denying the claim for service connection for bilateral hearing loss disability. The relevant evidence of record at the time of the September 2009 rating decision included the Veteran’s service treatment records, an April 2009 private record showing a diagnosis of bilateral sensorineural hearing loss, a September 2009 VA audiological examination, wherein the VA examiner concluded that the bilateral hearing loss disability was not related to in-service noise exposure, VA treatment records, and lay statements. The April 2009 private record showed that the Veteran reported difficulty hearing for the past 10 to 15 years and that he had been tested 10 to 12 years ago and had been found to have some hearing loss. The Veteran’s lay statements included a June 2009 statement asserting that he had failed an employer-administered hearing test twice after separating from service. The RO determined that the evidence did not establish a nexus between current bilateral hearing loss disability and in-service noise exposure. The Veteran was notified of the decision in an October 2009 letter, which included his appeal rights. In September 2010, less than one year after notification of the September 2009 rating decision, the Veteran submitted an application to reopen the claim for service connection for bilateral hearing loss disability and attached a July 2010 lay statement from someone with whom he had served, who attested to the in-service noise exposure they had experienced while in service. In the May 2011 rating decision, the RO properly concluded that the Veteran’s September 2010 claim was a request for reconsideration, as it was received within one year of the date it had notified the Veteran of the September 2009 rating decision. The RO denied service connection for a bilateral hearing loss disability, as it found that there was no competent evidence linking his current bilateral hearing loss disability to service. The Veteran was notified of this determination that same month. The Veteran did not appeal this decision, and no additional evidence pertinent to the issue was associated with the claims folder within one year of the decision. See 38 C.F.R. § 3.156(b). Thus, the May 2011 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the May 2011 final rating decision, relevant evidence added to the file includes a lay statement, an additional VA audiological examination, VA treatment records, private medical records, and the Veteran’s hearing testimony. The Board notes that there have been multiple private records received pertaining to disabilities other than hearing loss. The Veteran submitted a lay statement in January 2013 stating that his hearing loss was significant at his discharge from active service, despite several exams indicating that his hearing was normal during active service. The Veteran was afforded a VA audiological examination in May 2014. The examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not related to service. The examiner reasoned that the Veteran’s service treatment records contained multiple hearing tests, and that each of these tests documented normal hearing sensitivity. The examiner acknowledged that the Veteran worked in the engine room of a ship during active service, and that he worked as a lineman in a power plant for six years and then worked as an apprentice lineman around truck noise for 28 years. The examiner explained that while the Veteran’s military occupational specialty likely exposed him to excessive noise, possibly without adequate hearing protection, the Veteran’s service treatment records did not show that this had a negative impact on his hearing, and thus, it was less likely than not that the Veteran’s current bilateral hearing loss disability was related to active service. The Veteran also sought private medical treatment in July 2013 at which he reported decreased hearing. The Veteran testified at his May 2018 Board hearing that he worked in an engine room on a destroyer during active service. The Veteran asserted that he was surrounded by loud noise and that he had hearing loss when he left active service. In a June 2018 post-hearing submission of argument, the Veteran’s attorney states that the Veteran’s claim for hearing loss was denied in part due to a finding by VA that the Veteran worked primarily in a power plant, and that the Veteran worked in a power plant for only six years, after which he worked for 28 years as a lineman. The Veteran’s attorney also described a private audiology assessment conducted in April 2009 at which the Veteran informed the audiologist that he was experiencing “increasing difficulties” with his hearing in the 10-15 years prior to the exam, and argues that given the early onset of the Veteran’s hearing loss and relatively minor occupational and recreational noise exposure following service, the Veteran should be granted service connection for bilateral hearing loss disability. The RO determined new and material evidence had been received to reopen the claim. As noted above, the Board must make its own determination as to whether new and material evidence has been received since the last final decision. The Board has reviewed the evidence of records with special attention to the evidence received after the May 2011 rating decision and finds that new and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss disability. At the time of the May 2011 rating decision, of record were the service treatment records, which showed hearing test results; an April 2009 private record showing a diagnosis of sensorineural hearing loss with the Veteran reporting hearing loss having its onset 10 to 15 years ago, which would be in approximately 1994 to 1999; a July 2010 lay statement from someone whom served with the Veteran and attested to the in-service noise exposure that the Veteran experienced; and a September 2009 VA audiological examination, which showed evidence of a bilateral hearing loss disability, and which showed the examiner concluded that the current bilateral hearing loss disability was not related to in-service noise exposure. Thus, the evidence at that time showed in-service noise exposure and a current bilateral hearing loss disability, but did not establish a nexus, through competent evidence, between the current hearing loss disability and service. The evidence received since the May 2011 rating decision shows that the Veteran has a bilateral hearing loss disability and that the Veteran had in-service noise exposure. None of the evidence added to the file provides competent evidence of a nexus between the current bilateral hearing loss disability and service, to include manifestations of a bilateral hearing loss disability within one year following service discharge. Thus, one of the requirements for entitlement to service connection—competent evidence of a nexus between the current disability and service—was not met at the time of the May 2011 rating decision and is still not met. The Veteran cited to the April 2009 private audiological examination and the July 2010 lay statement as reasons for why the Veteran should be service connected for bilateral hearing loss. Those records were in the file at the time of the May 2011 rating decision, and thus do not establish a basis to reopen the claim. The Veteran also noted that a VA audiological examination had incorrect facts about the Veteran’s work history at the time the examiner made the conclusion that bilateral hearing loss disability was not related to in-service noise exposure. That was the September 2009 VA audiological examination that he was referring to, and was considered at the time of the May 2011 rating decision. The May 2014 examiner had the correct facts pertaining to the Veteran’s occupational history before him and still concluded that the Veteran’s bilateral hearing loss disability was not related to in-service noise exposure. A negative opinion is not new and material evidence. The Veteran’s lay statements and testimony during the current appeal period are the same contentions he had alleged at the time of the May 2011 rating decision—that he was exposed to loud noise in service and that it caused his current bilateral hearing loss disability. Thus, the Veteran’s contentions are cumulative and redundant as those he alleged at the time of the May 2011 rating decision. The Board also finds that the May 2014 VA examination shows essentially the same findings as the September 2009 VA examination considered at the time of the May 2011 rating decision, which was that the Veteran had a current bilateral hearing loss disability but that such was not related to in-service noise exposure. Therefore, sufficient new and material evidence has not been presented to reopen the claim for service connection for bilateral hearing loss disability. Given that the evidence submitted since the prior final May 2011 rating decision is not both new and material, the application to reopen of the Veteran’s claim of entitlement to service connection for bilateral hearing loss disability is denied. 38 U.S.C. § 5108. REASONS FOR REMAND 2. Entitlement to service connection for steatohepatitis with cirrhosis as being secondary to type II diabetes mellitus is remanded. The Veteran claims that he developed steatohepatitis with cirrhosis from his service-connected type II diabetes mellitus. VA obtained medical opinions as to whether this disability was caused by type II diabetes mellitus, but did not obtain a medical opinion as to whether steatohepatitis with cirrhosis has been permanently aggravated by type II diabetes mellitus. The claim is remanded so that an aggravation opinion may be obtained. 3. Entitlement to a TDIU rating is remanded. The Veteran claims that is precluded from securing and maintaining substantially gainful employment due to the service-connected lumbar spine disability. The Veteran testified at the May 2018 Board hearing that he received Social Security Administration (SSA) disability benefits for his lumbar spine disability. Some records from SSA are in the file; however, based upon the Board’s review of the evidence of record, it finds that not all the SSA records have been obtained. As these records are relevant to the issue of entitlement to a TDIU rating, the claim is remanded so that these records can be associated with the Veteran’s file and properly considered in the adjudication of the claim. These matters are REMANDED for the following action: 1. Provide the Veteran another opportunity to identify any pertinent treatment records. The RO should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Obtain an opinion from an appropriate VA examiner regarding whether it is at least as likely as not (a 50 percent or greater probability) that steatohepatitis with cirrhosis is aggravated by the service-connected type II diabetes mellitus. The term “aggravated” as used herein refers to a permanent worsening of the underlying condition beyond the natural progression of the disease process, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to a baseline level of disability. The examiner is asked to state upon what facts and medical principles the opinion is based. If the VA examiner believes that a physical examination is warranted, the Veteran should be scheduled for a VA examination with an appropriate VA examiner. If the examiner finds that type II diabetes mellitus permanently aggravates the steatohepatitis with cirrhosis, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for steatohepatitis with cirrhosis prior to aggravation. If the examiner is unable to establish a baseline for the steatohepatitis with cirrhosis prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 3. Obtain the records upon which the Veteran’s Social Security Administration disability benefits were based. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel