Citation Nr: 18158818 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-62 872 DATE: December 18, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for bilateral hearing loss is granted. New and material evidence having been received, the claim to reopen service connection for tinnitus is granted. The petition to reopen a claim of service connection for a hernia condition is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral eye condition is remanded. FINDINGS OF FACT 1. Evidence received since the July 2009 rating decision denying service connection for a hernia condition does not relate to unestablished facts necessary to substantiate the claim, or raises a reasonable possibility of substantiating the claim. 2. Evidence received since the July 2009 rating decision denying service connection for bilateral hearing loss and tinnitus relates to an unestablished fact necessary to substantiate the claims, or raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying entitlement to service connection for bilateral hearing loss, tinnitus, and a hernia condition, is final. 38 U.S.C.§ 7105 (c); 38 C.F.R. §§ 20.1103, 20.204 (2018). 2. New and material evidence has not been received to reopen the claim of service connection for a hernia condition. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 3. New and material evidence has been received to reopen the claims of service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1987 to August 1991 in the U.S. Marines, and a subsequent period of active duty service from September 1993 to October 1994 in the U.S. Coast Guard. However, the Veteran’s period of active duty service from September 1993 to October 1994 ended with an other than honorable discharge due to a period of AWOL, and has been deemed dishonorable for VA purposes. Therefore, the Veteran’s appeal will only pertain to his first period of active duty service. Claims to Reopen The Veteran is seeking to reopen claims of service connection for bilateral hearing loss, tinnitus, and a hernia disability that were previously denied in a July 2009 rating decision. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such 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). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Procedural background shows that a May 2006 rating decision initially denied the Veteran’s claims of service connection for hearing loss and tinnitus on the basis that the evidence was absent of any evidence showing that the conditions were incurred in or related to service. In a July 2009 rating decision, the Veteran’s claims of bilateral hearing loss and tinnitus were continually denied for failure to submit new and material evidence, and the Veteran’s claim of service connection for a hernia disability was denied on the basis that said condition was not caused by service. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decision became final. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1100 (a), 20.1104. Since the July 2009 rating decision, new evidence has been received pertaining to the Veteran’s service connection claims for bilateral hearing loss and tinnitus. Specifically, the Board notes that service treatment records (STRs) added to the Veteran’s claims file shows a notation reflecting “abnormal ears” on the Veteran’s enlistment examination. Additionally, a comparison of the Veteran’s enlistment and separation audiograms appear to show some degree of left ear hearing loss as the Veteran has a hearing threshold of 15 decibels at the 6000 Hz range upon enlistment, and a hearing threshold of 25 decibels at the 6000 Hz range upon separation. Thresholds over 20 show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Board recognizes that the May 2006 and July 2009 rating decisions noted that the Veteran’s STRs were considered as evidence in their decisions; however, the Veteran’s claims file shows that the Veteran’s STRs were not associated with the record until March 2014. Moreover, the evidence surrounding the notation of “abnormal ears” and left ear hearing loss in service do not appear to have been considered in previous rating decisions. Therefore, the Board finds the evidence is new and material sufficient to reopen the Veteran’s claims of service connection for bilateral hearing loss and tinnitus. The claims are further addressed in the decision below. With respect to the Veteran’s claim of service connection for a hernia condition, evidence submitted since the July 2009 rating decision includes a March 2014 Statement in Support of Claim concerning the onset of the condition, and medical treatment records, to include his 2001 hernia surgery. However, the evidence pertaining to the Veteran’s 2001 surgery is duplicative and was previously considered in the July 2009 rating decision. The remaining treatment records are new, but not material as they do not show any evidence that could possibly substantiate the claim. As there is no other evidence of record since the July 2009 rating decision that has not been previously considered and raises a reasonable possibility of substantiating the claim, the Veteran’s petition to reopen service connection for a hernia condition is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss and tinnitus. As noted above, the Veteran’s claim of service connection for bilateral hearing loss and tinnitus have been reopened. With respect to the merits of the claims, further development is necessary before the Board can properly adjudicate the Veteran’s claims. In the Veteran’s June 2007 audiology examination, the examiner found that the Veteran’s tinnitus was not due to military noise exposure. In so finding, the examiner noted that the Veteran reported first noticing tinnitus 13 years post-service with intervening occupational noise exposure. The examiner concluded that normal tinnitus is experienced in most people without hearing loss, and that the Veteran’s tinnitus fits this definition. Concerning the Veteran’s bilateral hearing loss, the examiner found that the Veteran’s hearing was normal. After reviewing the examination, the Board finds the examination inadequate. First, the Board notes that the examiner found that the Veteran’s enlistment and separation examinations showed normal hearing; however, as explained above, the Veteran appears to have some degree of left ear hearing loss while in service. Further, there is no indication that the examiner considered the notation of “abnormal ears” found in the Veteran’s STRs and whether this may or may not have been relative to the Veteran’s tinnitus. Moreover, contrary to the examiner’s note, the Veteran reported in his VA Form 9 that he was not exposed to significant noise as a civilian. Given the above, the Board finds a new VA examination and opinion are needed to make a decision on this claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Similarly, although the examiner found that the Veteran had normal hearing, the Board finds that based on the above inadequacies and given the age of the examination, a new examination is warranted as the current state of the Veteran’s disability may not be accurately reflected. Green v. Derwinski, 1 Vet. App. 121 (1991). 2. Entitlement to service connection for a bilateral eye disability. With regard to the Veteran’s claim for a bilateral eye disability, STRs shows that the Veteran complained of left eye pain. In addition, the Veteran had an incident in which battery acid was splattered in his face and eyes. In a June 2014 written correspondence, the Veteran reported that he has to wear glasses, and he gets a sharp pain in his eyes, intermittently. The Board notes the Veteran is competent to report his experienced symptoms as he observes them. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the potential link between the Veteran’s in-service eye injuries and his current eye disability, an examination is required. 38 C.F.R. § 3.159 (c)(4); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate the same with the Veteran’s claims file. 2. Schedule the Veteran for a VA audiology examination to determine the nature and etiology of the Veteran’s asserted bilateral hearing loss and tinnitus disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should state an opinion as to the following: a) Whether the Veteran has a diagnosis of right and/or left ear hearing loss that was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service? b) Whether the Veteran’s tinnitus was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service? 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral eye condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. The examiner should provide an opinion as to whether the Veteran’s bilateral eye condition was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service? The examiner must provide a complete rationale for all opinions expressed. If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion. 4. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel