Citation Nr: 18155746 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-58 226 DATE: December 6, 2018 ORDER The previously denied claim of entitlement to service connection for left ear hearing loss is reopened. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of left ear surgery is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for left ear hearing loss was denied in an April 1975 rating decision on the basis that there was no evidence of incurrence or aggravation of the condition in service. The Veteran did not appeal the decision within one year. 2. Evidence received since the November 2008 rating decision speaks to the reasons for the previous final denial. CONCLUSION OF LAW The criteria to reopen the previously denied claim of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service in the United States Army from November 1972 through November 1974. The statement of the case (SOC) in this matter was issued on September 2015 and the Form 9 Substantive Appeal was filed on July 2016, which is after the 60 day window to file a substantive appeal. However, as credible evidence submitted by the Veteran’s counsel indicates the SOC was not sent and delivered in accordance with the provisions of 38 U.S.C. § 5104(a), the appeal is considered to have been filed late with good cause, and the Board of Veterans’ Appeals (Board) has jurisdiction over the appeal. 1. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for left ear hearing loss. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Here, a claim of entitlement to service connection for left ear hearing loss was denied in an April 1975 rating decision on the basis that there was no evidence of incurrence or aggravation of the condition in service. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now 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). New evidence subsequently associated with the file includes numerous medical treatment documents, lay statements regarding onset, and an October 2012 VA examination that includes an opinion on whether the Veteran’s condition is related to service. This new evidence speaks to the nature and etiology of the Veteran’s left ear disability, and is thus material. The new evidence is considered to have a reasonable possibility of substantiating the claim, and as such, reopening of the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 2., 3. The claims of entitlement to service connection for left ear hearing loss and entitlement to compensation under 38 U.S.C. § 1151 for residuals of left ear surgery are remanded. The Veteran filed a claim for service connection for a “hearing condition” less than a month after his separation from active service, in November 1974. He indicated upon filing that it had its onset in the winter of 1973. The March 2011 claim sought compensation for residuals of ear surgery and hearing loss (The claim identified the right ear; subsequently correspondence clarified the claim to be for the left ear). The claim for residuals of ear surgery has been treated as a claim under 38 U.S.C. § 1151. There are lay statements associated with the file that indicate the Veteran’s left ear drainage (otorrhea) condition was apparent upon his return from active service. The Veteran was afforded a VA examination in May 2012. The VA examiner opined, after review of the Veteran’s files, that the service treatment records showed a 15-decibel “significant” threshold shift at 500 Hz and a mild loss at 6 KHz, but hearing was clinically normal by VA standards. The examiner concluded therefore the record does not substantiate a claim of hearing loss due to military noise exposure. The rationale in the VA opinion is unclear, as the VA examiner found a significant threshold shift during service was present, but opined that the hearing loss was unrelated to the Veteran’s active service without further explanation. Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). A new examination is warranted to address whether the Veteran’s hearing loss is related to his active service. Additionally, the Veteran ultimately underwent left ear surgery in 1990, and seeks 38 U.S.C. § 1151 compensation for residuals of this surgery. This issue is intertwined with the remanded left ear hearing loss claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). It is also noted that lay statements of record seem to suggest that the Veteran’s ear drainage symptom was present upon his separation from service. His 1974 claim was filed almost immediately after service, and from the paperwork, it is rather vague as to what compelled him to file the claim or to believe he had a hearing condition. On remand, the VA examiner should take a full history of the Veteran’s hearing condition, and inquiring specifically as to the symptoms that prompted him to file the claim in 1974. The examiner should provide an opinion as to whether the surgery was related to the reported symptoms. The RO should engage in any appropriate development and/or recharacterization of the claims on appeal based on the responses and evidence received. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine whether his left ear hearing loss, or any other left ear hearing condition that prompted the surgery is related to his active service. After reviewing the claims file and performing all indicated tests, the examiner is to state whether it is at least as likely as not that any diagnosed condition had its onset during active service or is otherwise related to the Veteran’s active service. The VA examiner should also provide a retrospective opinion as to whether any condition that prompted a left ear surgery had its onset during active service or is otherwise related to the Veteran’s active service. 2. After the development above has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issues on appeal. If the determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order, for further review. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel