Citation Nr: 18148444 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-19 281A DATE: November 7, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for bilateral hearing loss, and the application to reopen is allowed; to this extent only, the claim is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed November 2012 rating decision, the RO denied the Veteran’s original claim for service connection for bilateral hearing loss. 2. Evidence received since the final November 2012 rating decision is new and material, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The November 2012 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the November 2012 rating decision is new and material, and the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to January 1983. In September 2017, the Board remanded the claim for further development, to include providing the Veteran with a new VA examination. The Board notes that the issue of entitlement to a TDIU is part of a different appeal stream that is currently being developed at the RO at the post-notice of disagreement stage and the RO has not yet issued a statement of the case (SOC) regarding this claim. The Board acknowledges that ordinarily this claim should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address these claims at this time. Furthermore, the Board notes that the Veteran perfected his appeal for increased rating for tinnitus in October 2018; however, this issue was not yet certified to the Board and will be decided at a later time. Accordingly, the only issue currently on appeal is service connection for bilateral hearing loss. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for bilateral hearing loss in November 2012, finding that there was no evidence of a nexus. The evidence considered at the included the Veteran’s service treatment records, VA medical treatment records, and a November 2012 VA audiology examination report. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the November 2012 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the November 2012 rating decision denial includes the Veteran’s March 2014 petition to reopen, additional VA treatment records, the Board’s September 2017 remand, a July 2018 VA audiology examination report, and an August 2018 correspondence from the Veteran’s attorney. This evidence, specifically the attorney’s argument challenging the adequacy of the VA examination and suggesting that the Veteran’s hearing loss has been continuous since service relates to the unestablished element of a nexus based on continuity of symptomatology. The additional evidence received since the November 2012 final denial is therefore new and material. The criteria for reopening the claim for service connection for bilateral hearing loss are therefore met. REASONS FOR REMAND After a careful review of the record, the Board finds that it is necessary to obtaining an addendum medical opinion is necessary prior to making a decision on the merits of the claim. Notably, the Board’s prior remand found the November 2012 VA audiologist’s opinion inadequate because the opinion relied on the fact that hearing loss was not shown at separation and did not provide an opinion whether it could be related to the Veteran’s noise exposure in-service. The Board further noted that the audiologist failed to explain why the Veteran’s history of ear infections as a child was related to the current hearing loss or why post-service noise exposure was more likely the cause for his hearing loss than the noise exposure in-service. In July 2018, the Veteran underwent an additional VA audiology examination; however, the examiner again only discussed the fact that hearing loss was not shown at separation, and indicated that the National Institute for Occupational Safety and Health (NIOSH) concluded that delayed onset of hearing loss was not supported, and in absent of any threshold shift between his induction and separation, it was less likely than not that his hearing loss was related to service. Despite this rationale, the examiner still failed to address the Board’s questions as to why his history of ear infections as a child are more likely the result of his current hearing loss, and why the Veteran’s post-service noise exposure was more likely to cause his current hearing loss than the in-service noise exposure. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since September 2018 are associated with the claims file. 2. Obtain an addendum opinion regarding the nature and etiology of the Veteran’s bilateral hearing loss disability. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a careful review of the record, the examiner is asked to respond to the following: (a) Does the prior VA opinion remain the same – that the current hearing loss is less likely as not related to service? (b) If so, please fully explain why, aside from the normal hearing at separation, the currently diagnosed hearing loss is more likely related to other factors, to specifically include ear infections during the Veteran’s childhood, family history of hearing loss, and occupational and recreational noise exposure post service, and not to in-service noise exposure. (c) Also address the discrepancies regarding the date of onset of the Veteran’s hearing loss. Attention is called to the following VBMS entries on 06/26/2012 titled “CAPRI” (a) VA treatment record dated in June 2011 pages 166, 204, and 241, showing family history of hearing loss; (b) December 2007 VA treatment records on page 69, showing normal hearing; (c) September 2009 and February 2012 VA treatment records on pages 43, 57, 61, and 272, showing no hearing loss, some hearing loss, and diagnosis of hearing loss; (d) February and April 2012 VA treatment records on pages 3, 47, 75, and 76, showing family history of hearing loss, including both parents and occupational and recreational noise exposure due to construction work and loud music; (e) VMBS entry on 07/09/2012 titled “MAP-D Development Letter,” indicating no difficulty hearing in February 1989; (f) November 2012 VA audiology examination report indicating that the Veteran had a history of ear infections during his childhood; and (g) July 2018 VA audiology examination report. The examiner should provide a complete rationale for all opinions. 3. Then, readjudicate the claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel