Citation Nr: 1817487 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-33 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned at a June 2017 hearing at the RO. A transcript of that hearing is of record. A September 2014 RO decision reopened the previously denied claim for service connection for right ear hearing loss. The Board must address the question of whether new and material evidence has been received to reopen the claim for service connection in order to establish its jurisdiction to review the merits of a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issue of entitlement to service connection for right ear hearing loss is remanded to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. A January 2006 rating decision denied service connection for right ear hearing loss. The Veteran withdrew the appeal of the decision, and that decision is final. 2. The evidence received subsequent to the January 2006 final denial of the claim for service connection for right ear hearing loss is new, and is also material because it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2006 rating decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. As new and material evidence has been received since the January 2006 rating decision, the requirements to reopen the claim for service connection for right ear hearing loss have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, VA rating decisions that are not timely appealed are final. However, 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. 38 U.S.C. §§ 5108, 7105 (2012). New evidence means 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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) (2017). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A January 2006 rating decision denied service connection for right ear hearing loss because the record did not contain any evidence that the Veteran had right ear hearing loss. The relevant evidence of record at that time included the Veteran's statements and service medical records. The Veteran was notified of the decision and his appellate rights by letter dated January 19, 2006. The Veteran submitted a timely notice of disagreement within one year following the denial, and proceeded with the appeal process. However, in a May 2007 statement, the Veteran withdrew the appeal of the claim of service connection for right ear hearing loss. Therefore, the January 2006 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.302 (2017). Briefly reviewing the evidence submitted since the January 2006 decision, VA medical records, specifically an April 2014 VA examination, show a diagnosis of right ear hearing loss. That evidence, which was not of record at the time of the January 2006 rating decision, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a) (2017). Therefore, the claim for service connection for right ear hearing loss is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for right ear hearing loss is reopened, and to that extent only the appeal is granted. REMAND The Board finds that further evidentiary development is necessary before the claim of entitlement to service connection for right ear hearing loss can be adjudicated. The Board finds that a new VA examination is needed. At an April 2014 VA examination, the examiner diagnosed sensorineural hearing loss in the right ear. The examiner opined that the hearing loss was less likely than not caused by or the result of an event in service, including noise exposure, because service medical records showed a normal whisper test at separation, and contained no complaints of hearing loss. The examiner further stated that the Veteran's exposure to noise in service was inconsistent, as the Veteran only reported noise exposure every six to seven weeks and was not exposed to noise on a daily basis. The examiner opined that it was unlikely that hearing loss would have started in service with inconsistent noise exposure as reported. The Board finds that the rationale provided by the VA examiner is inadequate. The failure to meet the criteria for hearing loss at the time of separation from active service is not necessarily a bar to service connection for a hearing loss disability. 38 C.F.R. § 3.303 (2017); Heuer v. Brown, 7 Vet. App. 379 (1995). Further, the examiner did not adequately consider the lay statements of the Veteran's wife as to onset and continuity of hearing loss. Specifically, the Veteran's wife stated that she noted hearing loss shortly after their marriage in February 1971. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is necessary to obtain a VA examination which considers all of the evidence of record. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and private medical records that are not already of record. 2. Then, schedule the Veteran for a VA audiology examination. The examiner must review the claims file and should note that review in the report. Any indicated tests should be accomplished. The examiner should obtain the Veteran's auditory thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and speech recognition scores using the Maryland CNC test. The examiner should opine as to whether it is at least as likely not (50 percent or greater probability) that any current right ear hearing loss had its clinical onset during service, within one year of service, or is related to any in-service disease, event, or injury. A rationale for any opinion expressed should be provided. The examiner should specifically address lay statements from the Veteran's wife regarding symptoms of hearing loss soon after the Veteran's separation from service, and the Veteran's June 2016 testimony. The examiner should specifically address whether the audiometric findings at the enlistment examination and whether the whispered voice and spoken voice tests administered at separation have any validity. The examiner should also address the significance of the Veteran indicating that he had hearing loss on the Report of Medical History at a March 1971 service examination. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs