Citation Nr: 18155811 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-58 843 DATE: December 6, 2018 ORDER New and material evidence not having been received, a claim of entitlement to service connection for bilateral hearing loss is not considered reopened. REMANDED The claim of entitlement to service connection for bilateral tinnitus is remanded. FINDINGS OF FACT 1. A March 2011 rating decision denied entitlement to service connection for -hearing loss; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for hearing loss has not been received since the March 2011 rating decision, and as such, the claim for entitlement to service connection for hearing loss is not considered reopened. CONCLUSIONS OF LAW 1. The March 2011 rating decision is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. New and material evidence has not been received since the March 2011 denial of entitlement to service connection for bilateral hearing loss sufficient to reopen the claim. 38 U.S.C. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1969 to November 1970 in the United States Army. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014). “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a March 2011 rating decision, the RO denied service connection for hearing loss. The Veteran did not file a notice of disagreement regarding the March 2011 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the March 2011 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2016); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). Evidence received since the rating decision in March 2011 includes lay statements by the Veteran supporting his exposure to noise while in Vietnam. These statements are consistent with the evidence present prior to the March 2011 rating decision. The December 2010 VA examiner specifically noted that the Veteran performed perimeter guard duty in Vietnam and did not work as a cook per his MOS. Evidence received since the rating decision in March 2011 also includes VA treatment records showing bilateral hearing loss. The Veteran’s treatment records prior to the March 2011 rating decision also indicated bilateral hearing loss, but did not indicate that the hearing loss was caused by his military service. No objective evidence submitted since the prior rating decision indicates that the Veteran’s hearing loss is causally related to his military noise exposure. The evidence submitted since the prior denial of service connection was cumulative and raise a reasonable possibility of substantiating the claim. Therefore, such evidence is not considered new and material and the claim for service connection for bilateral hearing loss is not reopened. REASONS FOR REMAND Entitlement to service connection for bilateral tinnitus is remanded. The Board notes that the Veteran’s representative cited a VA training letter indicating that the question of delayed onset tinnitus must be considered. The VA examiner in July 2016 did not address whether delayed onset tinnitus occurred in this case. Therefore, the Board finds that an addendum opinion is necessary before a decision on the merits may be made. The matter is REMANDED for the following action: 1. Return the claims file to the July 2016 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner, preferably an audiologist if reasonably available, for a nexus opinion. The examiner should review the claims file, specifically the Veteran’s service treatment records, his lay statements and history, and the December 2010 and July 2016 VA examinations and opinions. The examiner should then answer the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed tinnitus began in service, was caused by service, or is otherwise related to the Veteran’s active service. The Veteran’s lay assertions must be considered and discussed when formulating an opinion. The examiner should specifically address the representative’s claim of delayed onset tinnitus. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 2. After undertaking the development above and any additional development deemed necessary, the Veteran’s claim should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Patricia Veresink