Citation Nr: 18152190 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-28 738 DATE: November 21, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for left ear hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for residuals of traumatic brain injury is remanded. FINDINGS OF FACT 1. In an April 2011 rating decision, the Regional Office (RO) denied the Veteran’s claims for entitlement to service connection for left ear hearing loss and tinnitus; the Veteran did not submit a Notice of Disagreement (NOD) and new and material evidence was not received within the expiration of the year following the April 2011 rating decision. 2. Evidence associated with the claims file since the April 2011 denial is new, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims for service connection for left ear hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The April 2011 rating decision denying service connection for left ear hearing loss and tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the issues of entitlement to service connection for left ear hearing loss and tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to December 1970. The Veteran has received awards including the Combat Infantry Badge, the Air Medal, and two Purple Hearts for his service in the Republic of Vietnam. In an August 2018 Informal Hearing Presentation (IHP) submitted by the Veteran’s prior representative, notably after their Power of Attorney had been revoked, it was asserted that because the Veteran’s service treatment records showed a fragment wound in the left thumb, the Board should infer and grant a service connection claim for this disability. While the IHP correctly noted that the rules concerning how veterans must initiate new claims were amended in March 2015, and that informal claims for benefits made prior to this date would be recognized, the Veteran would still have had to communicate an intent to file a claim for such benefits. The fact that an injury is documented in service treatment records alone is insufficient to raise a claim for VA service connection benefits. Therefore, the Board finds that an informal claim was not previously raised, and if the Veteran wishes to file a claim for service connection benefits for a fragment wound of the left thumb, he would need to submit an application for benefits using the appropriate standardized form. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by agency decision makers. Material evidence means 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). The United States Court of Appeals for Veterans Claims (the 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, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In an April 2011 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for left ear hearing loss and tinnitus. The Veteran did not submit a NOD and new and material evidence was not received by VA within the expiration of the one-year period following the April 2011 rating decision. Therefore, the April 2011 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The April 2011 denials of service connection were based on findings that the evidence did not show that the Veteran’s left ear hearing loss was etiologically related to his military service or that his tinnitus arose during or is otherwise related to his military service. The evidence of record at the time of the April 2011 disability rating included service treatment records and military personnel records, statements from the Veteran, VA outpatient treatment records, and private treatment records, and a VA examination report from March 2011. Since that time, the Veteran submitted a private medical opinion in September 2012 stating that his hearing problem is at least as likely as not due to noise exposure and trauma while in service. The Veteran also submitted medical treatise evidence concerning delayed-onset hearing loss and tinnitus. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. The credibility of the evidence is also presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Therefore, it is found to be new and material, and reopening the claims of entitlement to service connection for left ear hearing loss and tinnitus is warranted. REASONS FOR REMAND As an initial matter, review of the record indicates that a December 2010 correspondence has not yet been translated from Spanish into English. On remand, such should be accomplished. As the Board is remanding these issues for additional development, the Agency of Original Jurisdiction should take steps to ensure that all of the Veteran’s updated and outstanding VA treatment records are associated with the claims file. 1. Entitlement to service connection for left ear hearing loss is remanded. The Veteran was provided with a VA audiological examination in March 2011, at which the VA examiner opined that it was less likely as not that the Veteran’s left ear hearing loss was related to combat exposure or acoustic trauma during service. As part of the foundation for the opinion, the examiner stated that pre-service audiometric testing in September 1968 and separation testing in August 1970 both showed normal hearing bilaterally. The Board notes that while a September 1968 pre-induction audiogram recorded pure tone thresholds at each kHz level, the August 1970 audiogram is largely illegible, and appears to only have “0” written in the few legible fields. Further, as noted above, the Veteran submitted a private medical nexus opinion supportive of his claim, as well as articles published in the Journal of Neuroscience concerning delayed-onset hearing loss. The 2009 medical journal article he submitted concluded that acoustic overexposures causing moderate, but completely reversible, threshold elevation leave cochlear sensory cells intact but cause acute loss of afferent nerve terminals and delayed degeneration of the cochlear nerve, suggesting that noise-induced damage to the ear has progressive consequences more widespread than are revealed by conventional threshold testing. An additional May 2015 article provides an overview of a number of studies over the years, leading the author to conclude that taken together, the results demonstrate that a single exposure has effects on the aging ear that continue long after the noise has stopped. An additional VA examination and medical opinion should be sought which addresses these medical journal articles and takes into consideration the conflicting medical opinion evidence of record. 2. Entitlement to service connection for tinnitus is remanded. Because a decision on the remanded issues of entitlement to service connection for left ear hearing loss and residuals of traumatic brain injury could significantly impact a decision on the issue of entitlement to service connection for tinnitus, the issues are inextricably intertwined. A remand of this claim is therefore also required. 3. Entitlement to service connection for residuals of traumatic brain injury is remanded. The Veteran has not yet been provided with VA examination concerning his claim for residuals of traumatic brain injury. While the Veteran has not specifically identified current complaints or treatment for other particular residuals, it has been contended that his hearing loss and/or tinnitus represent residuals of his asserted in-service head-trauma with loss of consciousness. On remand, an appropriate VA examination should be provided which addresses the nature and etiology of any current traumatic brain injury residuals. The matters are REMANDED for the following action: 1. Obtain all of the Veteran’s VA treatment records from February 2013 to the Present and associate them with the claims file. Ensure that the English translation of any documents or portions of documents added to the claims file that are in Spanish are also associated with the claims file. 2. Ensure that correspondence received on December 7, 2010 (dated November 30, 2010) is translated from Spanish to English, and that the translation is associated with the claims file. 3. After completing the aforementioned development, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any residuals of traumatic brain injury. The examiner should obtain as detailed a description as possible from the Veteran concerning his claimed in-service injuries. The examiner must opine whether it is at least as likely as not that the Veteran now suffers from residuals related to his described in-service head injuries (at any point during the relevant appeal period). It has been asserted that the Veteran’s left ear hearing loss and tinnitus may represent residuals of an in-service traumatic brain injury; the examiner is asked to address such contention. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the examiner is unable to provide any of the requested information without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. After completing the development requested in parts 1 & 2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed left ear hearing loss and tinnitus. The examiner must opine whether the Veteran’s left ear hearing loss and/or tinnitus is at least as likely as not related to an in-service injury, event, or disease, including his noise exposure in combat including his reports of being wounded by a booby trap and being in close proximity to a rocket-propelled grenade that went off and allegedly knocked him unconscious, and while participating in more than 50 helicopter flights in Vietnam. The examiner is asked to consider and address the conflicting medical evidence of record, particularly the medical nexus opinion from the March 2011 VA examination and September 2012 private medical opinion. The examiner’s attention is also directed to medical treatise evidence submitted in August 2018, which includes two articles published in the Journal of Neuroscience describing studies concerning delayed-onset hearing problems following past acoustic trauma. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the examiner is unable to provide any of the requested information without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel