Citation Nr: 18149983 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-22 865 DATE: November 14, 2018 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened and remanded. New and material evidence having been received, the claim for service connection for tinnitus is reopened and remanded. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss and tinnitus was denied in a July 2013 rating decision; the Veteran did not appeal this decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. The evidence added to the record since the July 2013 rating decision does relate to an unestablished fact necessary to substantiate the claims for service connection for bilateral hearing loss and tinnitus, and does raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The July 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. Evidence received since the last final denial on the issues of service connection for bilateral hearing loss and tinnitus is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1966 to May 1968. The matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence The Veteran’s claim for service connection for bilateral hearing loss was originally denied in a July 2013 rating decision because there was no nexus between the Veteran’s military service and the Veteran’s current hearing loss. A claim for service connection for tinnitus was originally denied in the July 2013 rating decision based on a finding that the condition did not occur during and was not caused by service. The Veteran did not appeal this decision, nor did VA actually or constructively receive any new and material evidence within a year following notification; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. In April 2015, the Veteran filed a request to reopen his claims for bilateral hearing loss and tinnitus. In the July 2015 rating decision currently on appeal, the RO declined to reopen the Veteran’s claims for bilateral hearing loss and tinnitus because no new and material evidence had been received. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers. 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. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. In the Veteran’s August 2015 VA Form 21-0958, Notice of Disagreement (NOD), the Veteran states that he experienced considerable hearing loss soon after his tour of duty in Vietnam. In the Veteran’s May 2016 VA Form 9, the Veteran states that he has had ear problems since his service in Vietnam. This additional evidence was not of record during the RO’s previous determination. It is presumed credible and relates to the bases of the prior final denial, that is the etiology of the Veteran’s hearing loss and tinnitus, as it indicates the Veteran has had hearing difficulties and problems with his ears since his service. Accordingly, this evidence is new and material to the case at hand. The Board therefore finds that the Veteran’s claims for bilateral hearing loss and tinnitus are reopened. REASONS FOR REMAND Entitlements to service connection for bilateral hearing loss and tinnitus are remanded. A June 2013 VA opinion concluded that the Veteran’s hearing loss and tinnitus were less likely than not related to the Veteran’s noise exposure during his active duty service. The examiner noted that the Veterans April 1968 separation examination reflected normal hearing thresholds, with the exception of mild hearing loss at 6000 Hz in the left ear, and no tinnitus. Based on the separation examination, the examiner opined that there was no scientific support for delayed onset noise induced hearing loss or tinnitus weeks, months, or years after the exposure. The examiner opined that because the Veteran’s hearing was within normal limits in 1968 that his current bilateral hearing loss and tinnitus were less likely than not related to his service. The Board finds that this medical opinion is inadequate for rating purposes. In his August 2015 Notice of Disagreement, the Veteran contended that he had experienced hearing loss soon after his tour of duty in Vietnam, rather than in the 1970s. Moreover, the Veteran’s VA Form 9 indicates that he had ear problems since his service in Vietnam. Both of these statements suggest an earlier onset of hearing loss and tinnitus than the June 2013 VA examiner considered. As such, the Board finds that remand for a new examination and opinion is needed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2015 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss and tinnitus. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including noise exposure in Vietnam. In providing this opinion, the examiner should consider the Veteran’s competent statements regarding his noise exposure and experiencing symptoms of hearing loss and ear problems since his time in Vietnam. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel