Citation Nr: 1808887 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-39 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear hearing loss disability. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran had active air service from May 1955 to January 1956. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an October 2014 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). The issues of entitlement to service connection for bilateral hearing loss disability and tinnitus are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed May 1983 rating decision denied service connection for right ear mastoidectomy with hearing loss. 2. The evidence associated with the claims file subsequent to the May 1983 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss disability. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right ear hearing loss disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The RO initially denied service connection for post-operative residuals, right mastoidectomy, with hearing loss, in May 1983. The RO found at that time that, the Veteran's right ear hearing loss pre-existed his service and was not shown to have been aggravated by his active service. The Veteran did not that decision. The evidence received since the May 1983 rating decision includes two private treatment provider nexus opinions supporting the Veteran's contentions that his bilateral hearing loss is etiologically related to his active service. The Board finds that the additional medical opinions are new and material. The Board notes that they are not cumulative or redundant of the evidence previously of record. Moreover, they raise a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss disability. Accordingly, reopening of the claim of entitlement to service connection for right ear hearing loss disability is warranted. ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for right ear hearing loss disability is granted. REMAND The Board finds that additional development is needed before the Veteran's remaining claims on appeal are decided. The Veteran has asserted that his bilateral hearing loss disability and tinnitus are related to acoustic trauma sustained in active service. Specifically, the Veteran has reported exposure to jet engine noise while working on the flight line during active service. He has reported that he was not provided with hearing protection during active service. Service treatment records (STRs) show that the Veteran was seen in December 1955 for reports of drainage from the ear. The Veteran was hospitalized and provided treatment. Following treatment, the Veteran was diagnosed with otitis media, suppurative, chronic, left ear; perforation of the left tympanic membrane; mastoiditis, left ear, chronic; and deafness in the left ear. It was found that the disabilities listed existed prior to the Veteran's active service. However, a review of the record does not reveal an entrance examination prior to the Veteran's active service. Therefore, it cannot be known with any certainty whether the Veteran had a left or right sided hearing loss disability at the time of his entry into active service. As such, the presumption of soundness attaches. The Veteran has since reported that he first experienced bilateral hearing loss disability in service, and that his symptoms have continued since that time. The Veteran has submitted two private medical opinions to support his contention. In light on the in-service treatment for ear problems, the Veteran's report of continued symptoms of bilateral hearing loss disability and tinnitus since service, and the private medical evidence indicating that the Veteran's current bilateral hearing loss disability and tinnitus are related to his active service; the Board finds that the Veteran should be afforded a VA audiology evaluation to determine the nature and etiology of any currently present bilateral hearing loss disability and tinnitus. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, current treatment records should be identified and obtained before a decision is made in this case. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiological evaluation by an examiner with appropriate expertise to determine the nature and etiology of any currently present bilateral hearing loss disability and tinnitus. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on a review of the record and an evaluation of the Veteran, the examiner should provide the following findings: Does the Veteran have bilateral hearing loss disability that clearly and unmistakably existed prior to his active service? If so, was that disability clearly and unmistakably NOT aggravated by service? In forming the opinion, the examiner must note that the Veteran's lay statements alone are not a sufficient basis with which to support a finding that a disability clearly and unmistakably existed prior to service. With regard to any bilateral hearing loss disability determined to NOT clearly and unmistakably exist prior to the Veteran's active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability is etiologically related to active service, to include acoustic trauma sustained therein. With regard to any currently diagnosed tinnitus, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present tinnitus is etiologically related to active service, to include acoustic trauma sustained therein. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs