Citation Nr: 18148876 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-21 481 DATE: November 8, 2018 ORDER The appeal as to the issue of entitlement to service connection for tinnitus, having been granted, is dismissed as moot. New and material evidence having been presented, reopening of the claim for service connection for hearing loss is granted. REMANDED The Veteran’s claim for service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an April 2018 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent rating effective April 3, 2018, representing a full award of the benefit sought on appeal. 2. A November 2009 rating decision denied the claim of entitlement to service connection for hearing loss; the Veteran did not appeal that denial and, thus, it is considered final. 3. Evidence received subsequent to the November 2009 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The claim for service connection for tinnitus is moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran served on active duty from February 1984 to February 1988. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veteran’s Affairs (VA) Regional Office (RO) in Detroit, Michigan. Dismissal The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. 38 U.S.C.A § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by an appellant or by his authorized representative. Id. In the present case, in an April 2018 rating decision, the RO granted service connection for tinnitus and assigned an effective date of April 3, 2018. The grant of service connection for tinnitus and the assignment of a compensable disability rating constitutes a full award of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). The claim for service connection for tinnitus must therefore be dismissed as moot. In addition, the record contains no indication that the Veteran has disagreed with the effective date or disability rating assigned; thus, there remains no claim over which the Board may exercise appellate jurisdiction. See 38 U.S.C. §§ 7104, 7105; see also Grantham, 114 F.3d at 1158. New and Material Evidence has been presented to reopen Veteran’s claim for hearing loss. Legal criteria Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis The RO initially denied service connection for bilateral hearing loss in a November 2009 rating decision, based on a determination that the Veteran did not report to a scheduled VA examination and the lack of evidence of hearing loss in the Veteran’s service treatment records (STRs). The Veteran did not appeal the denial or submit any pertinent evidence within the appeal period. The evidence of record in November 2009 consisted of the Veteran’s statements, STRs, and the Veteran’s failure to appear for a VA examination. The evidence received after the expiration of the appeal period includes additional statements from the Veteran, as well as several VA examinations and post-service out-patient treatment records. From the above noted records, the VA examination in June 2011, reflects the Veteran’s bilateral hearing loss meets the criteria described at 38 C.F.R. § 3.385. Additionally, during his July 2015, DRO hearing, the Veteran asserted that his hearing loss arose shortly after a car accident he suffered while in service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). This evidence, when taken in the light most favorable to the Veteran, provide probative evidence tending to support his claim. As such, the Board finds this evidence to be new and material. Accordingly, reopening of the claim is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Initially the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran’s STRs do not show he was treated for or diagnosed with hearing loss during active duty; however, these records do show he was involved in a motor vehicle accident in August 1984. In addition, the Veteran stated during his DRO hearing that his hearing loss began shortly after his car accident. Based on the foregoing, the Board finds an examination with medical opinion is necessary to address this matter. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, given the Veteran’s report in his August 2010 statement in support of his claim about the existence of Army clinical records from Germany, the Board finds that an attempt to obtain these records should be undertaken. The matters are REMANDED for the following action: 1. Contact the appropriate records repositories to attempt to obtain the Veteran’s outstanding service treatment records from February 1984 to February 1988, to include any records of audiological testing or treatment done while the Veteran was stationed in Germany. Document any negative responses received. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s issue on appeal, to specifically include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the Veteran’s diagnosed hearing loss present during the period of the claim. Specifically, the examiner should state whether the diagnosed disability at least as likely as not (a 50 percent probability or greater) originated during the Veteran’s period of active service, within one year of the Veteran’s active service, or is otherwise etiologically related to his active service. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements, to include the Veteran’s statement regarding the fact that his hearing loss disability began after a MVA experienced during active duty. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham, Law Clerk