Citation Nr: 18151623 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 18-42 035 DATE: November 19, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. The appeal is granted to that extent only. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. By a September 2011 rating decision, the claim of entitlement to service connection for hearing loss was denied. That decision was not appealed and is final. 2. By a May 2016 rating decision, the claim of entitlement to service connection for tinnitus was denied. That decision was not appealed and is final. 3. Additional evidence has been received, which is not cumulative or redundant of the evidence of record at the time of the September 2011 and May 2016 rating decisions and relate to unestablished facts necessary to substantiate the claims for service connection for hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The September 2011 rating decision denying service connection for hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The May 2016 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 3. New and material evidence has been received to reopen the claims of entitlement to service connection for hearing loss and tinnitus and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1973 to December 1975. These issues come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By way of history, the Veteran filed his hearing loss claim in April 2011, which the RO denied in a September 2011 rating decision. The Veteran did not appeal that decision or submit new and material evidence within a year, which then became final after the one-year mark. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). Thereafter, the Veteran filed to reopen his hearing loss claim and filed a new claim for tinnitus in March 2016, which the RO denied in May 2016. The Veteran did not appeal that decision or submit new and material evidence within a year, which then became final at the one-year mark. The Veteran then filed to reopen his hearing loss and tinnitus claims in July 2017, which the RO denied in the August 2017 rating decision at issue in this matter. A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that the RO reopened the Veteran’s claims in its June 2018 Statement of the Case (SOC). However, the Board is required to make its own determination to reopen a claim based on new and material evidence. See Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). In its September 2011 rating decision, the RO denied the Veteran’s hearing loss claim based on the lack of audiometric findings to support a current hearing disability under 38 C.F.R. § 3.385. The RO also denied the Veteran’s tinnitus claim in its May 2016 rating decision based, in part, on the lack of complaints in-service. The Veteran was informed of the decision and of his procedural and appellate rights. He did not appeal these decisions or submit new and material evidence within a year, thereby making the rating decisions final. The evidence submitted since these rating decisions includes an October 2018 private treatment record that reports a current diagnosis of hearing loss and tinnitus as well as a medical nexus opinion that the Veteran’s hearing loss and tinnitus are directly related to noise exposure in-service. This evidence is new and material, as it provides some evidence that the Veteran has current hearing loss and tinnitus disabilities that are a result of his military service, which were previously unsubstantiated facts that are necessary to substantiate the Veteran’s claims. Therefore, the claims are reopened. REASONS FOR REMAND The Veteran contends that his hearing loss and tinnitus are due to his exposure to loud noises in-service. To date, the Veteran has not undergone a VA examination to determine the etiology of his hearing loss and tinnitus. Consistent with the VA's duty to assist, under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting 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) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran’s claims for service connection for hearing loss and tinnitus meet all the McClendon elements for a VA examination. The Veteran has submitted medical evidence reporting a current diagnosis of moderately severe to severe bilateral hearing loss and bilateral tinnitus. The Veteran has also submitted lay statements saying that he was exposed to loud noises in-service, which caused his current hearing loss and tinnitus disabilities. The Board notes that the Veteran has submitted an October 2018 medical nexus opinion from Dr. Y., who opined that the Veteran’s hearing loss and tinnitus are a direct result of the Veteran’s in-service noise exposure. However, this opinion is inadequate since it is based solely on information reported by the Veteran of his symptoms beginning during his military service and does not address the in-service audiometric evidence. There is no indication that Dr. Y. reviewed the Veteran’s claims file or service treatment records in rendering his opinion. Therefore, there is insufficient medical evidence in the Veteran’s claims file for the Board to decide the claims for service connection for hearing loss and tinnitus. Accordingly, a VA examination is necessary to determine the etiology of the Veteran’s hearing loss and tinnitus. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for an VA audiology examination. The electronic file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the electronic file and the Remand have been reviewed. The examiner is asked to provide an opinion as to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s current hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, specifically noise exposure the Veteran experienced in the course of his duties as a physical activities specialist working on bowling alley machinery; and (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current tinnitus began during service or is etiologically related to exposure to excessive noise during active duty service, specifically noise exposure the Veteran experienced in the course of his duties as a physical activities specialist working on bowling alley machinery? All indicated tests and studies, including controlled Maryland CNC speech discrimination test and a puretone audiometry test, should be conducted, and the reports should be incorporated into the examination report. In providing these opinions, the examiner must recognize the fact that no diagnosis of hearing loss or tinnitus in service is not, by itself, a sufficient reason to deny service connection for hearing loss or tinnitus. The examiner is to specifically address all lay statements and assume the Veteran is competent to report on acoustic trauma he was exposed to during active duty and of any hearing loss symptomology he experienced at that time and thereafter. The examiner must address the treatise evidence regarding bowling alley noise exposure. The examiner is to specifically address the opinion of Dr. Y.. See Correspondence October 2018. The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer's clinical experience, medical expertise, and established medical principles. However, if the examiner cannot respond to an inquiry without resort to mere speculation, (s)he should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel