Citation Nr: 18157527 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-58 499 DATE: December 13, 2018 ORDER New and material evidence having been received, the claim to reopen entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the claim to reopen entitlement to service connection for tinnitus is granted. New and material evidence having not been received, the claim to reopen entitlement to service connection for erectile dysfunction is denied. New and material evidence having not been received, the claim to reopen entitlement to service connection for prostate removal due to prostatism (a prostate disorder) is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The claims for entitlement to service connection for bilateral hearing loss, tinnitus, erectile dysfunction, and a prostate disorder were initially denied in a final January 2014 rating decision. The Veteran attempted to reopen his claims in February 2015 and was denied in a July 2015 rating decision. 2. The evidence received since the July 2015 rating decision raises a reasonable possibility of substantiating the claims for entitlement to service connection for bilateral hearing loss and tinnitus. 3. The evidence submitted since the July 2015 rating decision does not relate to an unestablished fact necessary to substantiate the claims for entitlement to service connection for erectile dysfunction and a prostate disorder. 4. The competent and credible evidence of record supports finding that the Veteran’s bilateral hearing and tinnitus loss are related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim for service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received, and the Veteran’s claim of entitlement to service connection for erectile dysfunction, is not reopened. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 4. New and material evidence has not been received, and the Veteran’s claim of entitlement to service connection for a prostate disorder, is not reopened. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1101, 1110, 1112; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 6. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 1101, 1110, 1112; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to June 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims for entitlement to service connection for posttraumatic stress disorder (PTSD) and a total disability based upon individual unemployability (TDIU) have been certified to the Board. However, the Veteran has not received a videoconference hearing, as requested, for these issues. As such, the Board will not take jurisdiction over these issues. New and Material Evidence A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, 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). Reopening of Claims of Service Connection for Bilateral Hearing Loss, Tinnitus, Erectile Dysfunction, and a Prostate Disorder In a January 2014 rating decision, the RO denied entitlement to service connection for bilateral hearing loss, tinnitus, erectile dysfunction, and a prostate disorder. The Veteran did not file a notice of disagreement (NOD) and no evidence pertaining to these issues was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.15(b). In February 2015, the Veteran submitted a claim to reopen these issues. In a July 2015 rating decision, the RO determined that new and material evidence had not been received to reopen the claims of service connection. Evidence associated with the claims file since the July 2015 rating decision includes the Veteran’s lay statements, VA treatment records, a September 2015 ear conditions disability benefits questionnaire (DBQ), and a September 2015 private positive nexus opinion with regard to bilateral hearing loss and tinnitus. The Veteran and his wife appeared at a December 2015 decision review hearing, in which the Veteran indicated there was a relationship between the residuals of his prostate cancer (including erectile dysfunction) and exposure to Agent Orange. He reported that tinnitus and hearing loss started in service. He wore bilateral hearing aids, which did not completely resolve his hearing difficulties. When considered with previous evidence of record, the Board finds the evidence added to the record since the July 2015 rating decision does not raise a reasonable possibility of substantiating the claims of service connection for erectile dysfunction and a prostate disorder. Specifically, the new evidence does not indicate that erectile dysfunction and prostate disorder are related to active military service, to include exposure to Agent Orange. The Board notes that the Veteran’s lay statements that these claimed conditions are related to service are cumulative and redundant; as the Veteran made similar statements at the time of the last prior final denial. As such, the evidence is not new and material and the claims for erectile dysfunction and prostate disorder are not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When considered with previous evidence of record, the Board finds the evidence added to the record since the July 2015 rating decision raises a reasonable possibility of substantiating the claims of service connection for bilateral hearing loss and tinnitus. Specifically, the new evidence includes evidence demonstrating the Veteran incurred in-service disabilities and a nexus between his current hearing loss and tinnitus and military service. As such, the evidence is new and material and the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The merits of these claims will be addressed below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran asserts that he has a bilateral hearing loss and tinnitus resulting from acoustic noise trauma during active service. Based on the Veteran’s military occupational specialty (MOS) as an aircraft hydraulic repairman, the Board concedes that the Veteran sustained acoustic noise trauma during active service. Based on a comprehensive review of the record, the Board finds that the evidence for and against the Veteran’s claims is at least in equipoise. The Board notes that the Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In October 2013, the Veteran was afforded a VA audiological examination. At that time, the Veteran reported the above described noise exposure. The examiner diagnosed tinnitus and bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The examiner also opined that the Veteran’s current bilateral hearing loss and tinnitus were “less likely than not” related to military acoustic trauma. However, the Veteran is competent to make reports regarding the symptomatology and onset of these disabilities and the Board notes that his reports have been confirmed by physician diagnoses. See Charles at 374; see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has consistently stated that he suffered from symptoms of tinnitus during and since service. The Board finds the Veteran’s statements credible. The nature and circumstances of the Veteran’s MOS support finding that his tinnitus had its onset in service. Thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). The Board also notes that in September 2015, the Veteran submitted a private nexus opinion indicating that hearing loss and tinnitus were caused by his military service. Although there is no evidence the audiologist reviewed the Veteran’s claims file, the Board finds that the competent opinion evidence regarding the nexus element of this appeal is at least in relative equipoise. Therefore, service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel