Citation Nr: 18159186 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-63 711 DATE: December 18, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus is granted. REMANDED Entitlement to service connected for bilateral hearing loss is remanded. Entitlement to service connected for tinnitus is remanded. FINDINGS OF FACT 1. In a September 2011 rating decision, the claims of entitlement to service connection for bilateral hearing loss and tinnitus were denied because the Veteran did not have a diagnosis of hearing loss for VA compensation purposes, and his tinnitus was not caused by, related to, and/or aggravated by service. 2. The evidence added to the record since the September 2011 rating decision relates to an unestablished fact that is necessary to substantiate the claims of service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The September 2011 rating decision that denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the September 2011 rating decision is new and material, the requirements to reopen the claims for bilateral hearing loss and tinnitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to May 1969. The Board observes that in December 2016 and June 2017, the Veteran’s attorney made a Freedom of Information (FOIA) request for a complete copy of the claims file. In September 2017, the Veteran’s attorney was provided a compact disc (CD) with a copy of the entire claims file. Further, in August 2018, the Veteran’s attorney made another FOIA request for the claims file. However, as no additional evidence or dispositions have been associated with the claims file since September 2017, the Board finds that all requested documents have been provided to the Veteran’s attorney. In any event, given that the Board is granting the full benefits sought and/or remanding the issues on appeal, there is no prejudice in proceeding with the adjudication/remand of the herein appeal – especially in light of the fact that the Veteran’s attorney may submit an additional post-remand FOIA request for any additional records that are associated with the file. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration 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. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran’s claims were previously denied by the RO in September 2011 on the basis that he did not have a diagnosis of hearing loss for VA compensation purposes, and that his tinnitus was not related to or aggravated by service. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claims. After a review of the evidence submitted since the September 2011 rating decision became final, the Board determines that the claims should be reopened. The evidence now includes new medical evidence, including an audiological evaluation, which raises the possibility that his bilateral hearing and tinnitus are related to his active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claims, it is also “material,” as it relates to an unestablished fact necessary to support the claims. Namely, it shows that there may be a nexus between these currently diagnosed disorders and the Veteran’s active duty service. Therefore, the claims should be reopened on this basis. REASONS FOR REMAND 1. Entitlement to service connected for tinnitus is remanded. 2. Entitlement to service connected for bilateral hearing loss is remanded. The Board observes that the Veteran was afforded a VA examination in August 2011, and the examiner opined that the Veteran did not meet the criteria for a diagnosis of bilateral hearing loss for VA compensation purposes. However, the Veteran has submitted new medical treatment records, including a March 2015 audiological evaluation, which reflects a current diagnosis of bilateral hearing loss for VA compensation purposes. Therefore, as the relevant facts have changed, the Board finds that a remand is necessary to determine if the Veteran’s current bilateral hearing loss and tinnitus are related to active service. The matters are REMANDED for the following action: 1. Obtain all treatment records from any VA facility from which the Veteran has received treatment since 2012. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his bilateral hearing loss and tinnitus. The claims file must be reviewed and such review should be noted in the opinion. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel