Citation Nr: 18106942 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 17-03 941 DATE: June 1, 2018 ISSUE Whether new material evidence has been submitted to reopen the claim for service connection for bilateral hearing loss disability (BHL); and if so, whether the claim should be granted. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for BHL is granted. REMANDED Entitlement to service connection for BHL is remanded. FINDINGS OF FACT 1. Service connection for BHL was denied in a December 2011 rating decision that was not appealed. 2. Evidence received since the December 2011 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for BHL are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1962 to April 1966. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran requested a Board videoconference hearing in his January 2017 formal appeal; however, he withdrew this request in correspondence received in March 2017. Therefore, the Board finds that the request for a hearing in this matter has been withdrawn. See 38 C.F.R. § 20.704 (e). The Board notes that in a July 2016 notice of disagreement, the Veteran disagreed with the denial of entitlement to service connection for a left shoulder scar and raised the issue of entitlement to an increased rating for his service-connected osteoarthrosis of the left shoulder with partial tear of rotator cuff. Subsequently in a November 2016 rating decision, the RO granted service connection for the left shoulder surgical scar but did not adjudicate the claim for an increased rating. As such, the issue of entitlement to an increased rating for the left shoulder has been raised by the Veteran in a July 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the increased rating claim, and the issue is referred to the AOJ for appropriate action. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant’s case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision below. The issue regarding whether new material evidence has been received to reopen the claim for service connection is addressed below. The underlying claim of service connection for BHL is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. Claim to Reopen Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead 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. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for BHL was denied in a December 2011 rating decision based on a determination that there was no medical link between the hearing loss and service. This decision was not appealed nor was new and material evidence submitted within one year, accordingly, the determination was final. 38 C.F.R. §§ 3.156(b), 20.1103 (2017). The evidence submitted in pertinent part since this decision includes December 2011, July 2016, and January 2017 correspondence from the Veteran in which he argues that his hearing loss was caused by working on the flight line in service around jet engines. The Veteran stated that he was an aircraft mechanic and was exposed to both jet and prop aircrafts on a regular basis and was issued minimal hearing protection. In July 2016 the Veteran also submitted an article that addressed noise-induced hearing loss as an occupational illness in the Air Force. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for sleep apnea is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board finds that additional opinion regarding the Veteran’s BHL is required on remand. Namely, the Veteran was afforded a VA examination in November 2011 in which the examiner opined that the BHL was not at least as likely as not caused by or a result of an event in military service. The examiner stated that due to having normal hearing at all frequencies from 500 to 6000 Hertz at the exit examination in February 1966, it was less likely as not that the Veteran’s hearing loss was caused by military noise exposure. Here, the examiner based the negative opinion solely on the absence of documented hearing loss during service and upon separation. However, regulations do not preclude service connection for current hearing loss which first met VA’s definition of disability after service. 38 C.F.R. § 3.385 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection.). As such, the Board finds that an addendum opinion should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim. 2. Then, provide access to the electronic claims file to the November 2011 VA examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s BHL. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s current BHL is related to his period of active duty service; to include in-service acoustic trauma. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for a hearing loss disability where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, supra. 3. Upon completion of the addendum ordered above, review the opinion to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the AOJ must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel