Citation Nr: 18152071 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-51 011 DATE: November 20, 2018 ORDER The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss was denied by an unappealed April 2009 rating decision. 2. Since the April 2009 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim of service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied the Veteran’s claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (2017). 2. The evidence received since the April 2009 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1978 to June 1998. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss While the Veteran’s appeal for entitlement to service connection for bilateral hearing loss has come to the Board after the AOJ reopened the issue, the Board must still consider whether new and material evidence was received sufficient to reopen the claim in order to establish the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decision makers, and “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 of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s filed a claim for service connection for bilateral hearing loss in August 2008. Service connection for bilateral hearing loss was denied in an April 2009 rating decision. The RO stated that the evidence of record did not show audiometric findings of a hearing loss disability. As evidence of a current hearing loss disability was not of record, the Veteran’s claim for a bilateral hearing loss disability was denied. The Veteran did not appeal this rating decision and it became final. 38 U.S.C. § 7105. Since the April 2009 rating decision, additional evidence has been associated with the claims file. In October 2015, the Veteran filed to reopen his claim for service connection for bilateral hearing loss. In May 2016, the Veteran stated that he underwent a hearing test at a VA clinic in February 2016 that revealed significant hearing loss in both ears. Records from the Wilmington VA Community Based Outpatient Center (CBOC) from February 26, 2016 state that a comprehensive audiological evaluation revealed sensorineural hearing loss, moderate to severe. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it indicates a diagnosis of bilateral sensorineural hearing loss during the appeal period. This evidence is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran’s claim. As such, new and material evidence has been received, and reopening the claim is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Upon review of the evidence, the Board finds that further development is necessary prior to adjudication of the Veteran’s claim. VA regulations state that impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. While the Veteran reports that he was diagnosed with bilateral hearing loss and the records from the Wilmington VA CBOC state that a comprehensive audiological evaluation revealed sensorineural hearing loss, moderate to severe, the evidence does not demonstrate what methods were used to determine whether the Veteran has a current diagnosis of hearing loss. While Progress Notes from the Veteran’s audiology consult at the Wilmington VA CBOC are of record, the evidence does not include audiogram results or speech reception thresholds that support a finding of a hearing loss disability for VA purposes. The Board finds that efforts should be undertaken to obtain any audiogram or speech reception thresholds recorded during the February 26, 2016 audiology consult. The Board also notes that the June 2017 examiner reported that the Veteran had normal hearing upon evaluation and did not provide an opinion regarding the etiology of any current hearing loss disability. The examiner, however, did not discuss the findings of the February 26, 2016 audiology consult at the Wilmington VA CBOC where a VA audiologist indicated a diagnosis of bilateral sensorineural hearing loss, moderate to severe. Accordingly, the Board finds that a new examination should be obtained that addresses the findings of the February 2016 audiology consult. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of all outstanding VA treatment records since May 2018, and attempt to obtain any audiogram or speech reception thresholds documented during the February 26, 2016 audiology consult at the Wilmington VA CBOC. 2. After appropriate efforts have been undertaken to obtain the records requested above, schedule the Veteran for a VA examination to provide an opinion as to the nature and etiology of any bilateral hearing loss present during the appeal period. If the examiner determines that the Veteran has not had bilateral hearing loss during the appeal period, the examiner must address the findings of the February 26, 2016 audiology consult at the Wilmington VA CBOC. If a diagnosis of bilateral hearing loss is found during the appeal period, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss was incurred as a result of his active service. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred. Any examiner is advised that the Veteran is competent to report in-service injuries, his symptoms and history. Such reports must be specifically acknowledged and considered in formulating any opinions. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran’s claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel