Citation Nr: 18160112 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 17-44 459 DATE: December 21, 2018 ORDER As new and material evidence was received, the request to reopen a claim for entitlement to service connection for bilateral hearing loss is granted. As new and material evidence was received, the request to reopen a claim for entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In a final May 2012 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and tinnitus. 2. The evidence received since the May 2012 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The May 2012 rating decision denying 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. § 20.1100. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim for entitlement to service connection 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 in the U.S. Navy from December 1954 to February 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision. New and Material Evidence A May 2012 rating decision denied claims for service connection for bilateral hearing loss and tinnitus on the basis that the evidence showed that hearing loss and tinnitus did not have onset in service and were not otherwise linked to his active duty service. The Veteran did not appeal this decision and the decision is now final. 38 U.S.C. § 7104. In November 2016, the Veteran sought service connection for bilateral hearing loss and tinnitus. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2016); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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). 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. 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). 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 is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that its task is to first decide whether new and material evidence has been received, as opposed to whether the evidence actually substantiates the Veteran’s claims. Pertinent evidence added to the record since the final May 2012 RO decision includes the Veteran’s statements, private and VA medical records, and copies of his STRs which had previously been submitted. In November 2016, the Veteran submitted a private medical examination which indicated that his bilateral hearing loss and tinnitus may be service-connected. Consequently, as the prior denial stated that the Veteran’s hearing loss and tinnitus were not linked to his active duty service and there has now been evidence admitted to the record which indicates that the Veteran’s bilateral hearing loss and tinnitus might be as a result of his active duty service, and resolving all reasonable doubt in favor of the Veteran, the Board finds that new and material evidence has been submitted regarding the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. Thus, the claims for entitlement to service connection for bilateral hearing loss and tinnitus are reopened and remanded for further development, as discussed below. REASONS FOR REMAND The record showed that over the course of his twenty years of military service, the Veteran worked as an aircraft engineer. Thus, noise-exposure in service is conceded. In My 2012, the Veteran underwent a VA examination for his bilateral hearing loss and tinnitus, which found that the Veteran’s bilateral hearing loss and tinnitus were less likely as not related to his active duty service. However, the examiner relied solely on the Veteran’s normal hearing at separation and did not address the Veteran’s long exposure to noise while in-service and did not provide an opinion or statement regarding any other causation for the Veteran’s hearing loss or tinnitus. As such, the Board finds that the May 2012 VA examination regarding the Veteran’s bilateral hearing loss and tinnitus was not adequate for adjudication purposes. Furthermore, the private examination submitted by the Veteran in November 2016 did not specifically state that the Veteran’s bilateral hearing loss and tinnitus were as or more likely than not related to the Veteran’s active duty service. As such, that examination, too, is inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his bilateral hearing loss and tinnitus. After securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file, specifically including from Dr. T.V. and the Cleveland Head and Neck Clinic, P.C. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Thereafter, schedule the Veteran for an appropriate examination, to determine the nature and likely etiology of his bilateral hearing loss and tinnitus. The claims file and all pertinent records must be made available to the examiner for review. The examiner should be notified of the Veteran’s specific periods and types of service. Based on the examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and/or tinnitus had onset in service or within one year following separation from service, or were causally related to service. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure) including the Veteran’s lay assertions, service treatment records, VA medical center records, the May 2012 VA examination, and private treatment records should be considered in giving this opinion. The examiner should note the Veteran’s military occupational specialty and that noise-exposure in-service has been conceded. The examiner is reminded that it is not a sufficient rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given   without resort to speculation, the examiner must explain the reason for that conclusion. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel