Citation Nr: 18158912 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-16 250 DATE: December 18, 2018 ORDER New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for tinnitus; to this extent only, the claim is granted. REMANDED Service connection for tinnitus is remanded. FINDINGS OF FACT 1. An October 2014 rating decision denied the Veteran’s claim for service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal that decision, nor did he submit new and material evidence within one year thereafter, and the decision became final. 2. The evidence received since the final October 2014 rating decision, while new, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. The evidence received since the final October 2014 rating decision, is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The October 2014 rating decision denying the claims of service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. While evidence received since the October 2014 denial is new, it is not material; hence, the criteria for reopening the claim for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the service connection claim for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1958 to September 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision, which declined to reopen previously denied claims for service connection for bilateral hearing loss and tinnitus. While the Veteran filed the instant appeal as a motion for clear and unmistakable error (CUE), the RO adjudicated the issues as new and material evidence since CUE places an onerous burden on the Veteran and thus is unfavorable to him. Since review of the record indicates that the Veteran is seeking service connection for bilateral hearing loss and tinnitus, the Board will continue to adjudicate these issues as a claim to reopen due to the fact that the Veteran has not successfully alleged CUE. Generally, CUE must be pled with some degree of specificity as to what the alleged error is and the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Even when liberally construing his November 2016 filing, it does neither. Moreover, while the representative references two medical articles, addressed in greater detail below, these were not of record at the time of the prior denial and therefore cannot be a basis for the allegation of CUE to refute the negative nexus opinion contained within the May 2014 VA audiological examination. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (determination of CUE must be based on the record and the law that existed at the time of the rating decision being challenged); April 2017 Statement of Accredited Representative and December 2018 Informal Hearing Presentation. New and Material Evidence A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Thus, the Board’s task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran’s claim. An October 2014 rating decision denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus due to a negative nexus opinion between the Veteran’s service and these diagnoses. The Veteran was informed of the decision in writing and did not appeal the decision or submit pertinent evidence during the appeal period. Therefore, this rating decision is final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 1. Bilateral Hearing Loss Since, the October 2014 final rating decision, new evidence associated with the claims file included a January 2017 private audiogram. Despite the evidence added to the claims file, nothing suggests that the Veteran’s bilateral hearing loss is related to service. The January 2017 private audiogram does not speak to the etiology of the Veteran’s bilateral hearing loss. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. The Board acknowledges that in the March 2017 substantive appeal, the Veteran contended that his bilateral hearing loss had its onset during active duty. He argues that he was exposed to acoustic trauma as a water supply specialist and at the rifle range, and that the October 2014 VA examiner’s utilization of the whisper test was improper for purposes of formulating a negative nexus opinion. Such contentions are neither new nor material. His March 2017 substantive appeal is a reiteration of contentions made in his April 2014 correspondence and July 2014 statement in support of claim. These contentions were considered and adjudicated in the prior rating decisions and therefore cannot be a basis for reopening the claim. Finally, the representative referenced articles by Dr. Sharon Kujawa, “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss” and Dr. James A. Henry et al., “A Triage Guide for Tinnitus.” Copies of these articles were not provided. In addition, while the representative argues that these articles suggest that bilateral hearing loss can have a delayed onset and thus are contrary to the opinion of the October 2014 VA examiner, this is insufficient to reopen the claim. As a general matter, articles that are general in nature and do not specifically relate to the facts and circumstances surrounding a particular case have minimal probative value. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus). While such articles, if provided, would be new, they would not be material as they would not offer evidence that the Veteran personally experienced hearing loss given his noise exposure in service. Consequently, the Board finds the new evidence does not raise a reasonable possibility of substantiating the claim of service connection and does not relate to an unestablished fact necessary to substantiate the claim. In consideration of the foregoing, the Board finds that the critical defect existing at the time of the previous rating decision has not been addressed by new evidence, much less cured, and thus the claim of entitlement to service connection for bilateral hearing loss may not be reopened. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for bilateral hearing loss is not reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. Tinnitus Since, the October 2014 final rating decision, new evidence associated with the claims file included a January 2017 private audiogram. The January 2017 private audiogram does not reference tinnitus. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. However, in the March 2017 substantive appeal, the Veteran contended that his tinnitus had its onset during active duty. The Veteran’s contention is new because it was not previously submitted to VA. Importantly, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. See Justus, 3 Vet. App. at 513. The evidence is also material because it relates to an unestablished fact necessary to establish the claim: evidence of a possible new theory of a nexus between the Veteran’s tinnitus and service not addressed by the October 2014 VA audiological examination. See also 38 C.F.R. § 3.156(a); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Although this new contention is adequate for the limited purpose of reopening this claim, it is not sufficient to allow the grant of the benefit sought. The Board finds that additional evidentiary development is required, as discussed in the remand below.   REASONS FOR REMAND Service Connection 3. Tinnitus The Veteran now contends that his tinnitus had its onset during active duty. This contention has not been considered by the RO as it’s prior denial relied on the fact that the Veteran reported an onset of tinnitus in the 1990s. Therefore, a medical opinion is necessary to address whether the Veteran’s tinnitus had its onset during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The examiner should specifically address the Veteran’s lay contention that his tinnitus had its onset during active duty. In remanding this issue, the Board is cognizant that such statement is in direct conflict with the Veteran’s prior report, during the October 2014 VA audiological examination, that his tinnitus had a gradual onset in the early 1990s. However, as this theory of entitlement has not been adjudicated by the RO, prior RO adjudication is necessary to avoid prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of tinnitus ONLY. The examiner must opine whether it is at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must also opine whether it is at least as likely as not related to an in-service injury, event, or disease, including addressing the Veteran’s lay contention that his tinnitus had its onset during active duty. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel