Citation Nr: 18127828 Decision Date: 08/20/18 Archive Date: 08/20/18 DOCKET NO. 15-23 106 DATE: August 20, 2018 ORDER New and material evidence having been received, the issue of entitlement to service connection for bilateral hearing loss is reopened; and to that extent only, the claim 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. An unappealed July 1977 rating decision denied entitlement to service connection for hearing loss disability. 2. The evidence associated with the claims file subsequent to the July 1977 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1976 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that 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. See 38 C.F.R. § 3.156(a). In July 1977, the Veteran filed a claim seeking entitlement to service connection for left ear hearing loss. In an October 1977 rating decision, the Veteran was denied entitlement to service connection for a hearing loss disability based on a finding that the Veteran had normal hearing for VA purposes at separation from service and that his “hearing acuity defect” was neither incurred nor aggravated by service. The Veteran did not appeal this decision and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.201. The evidence that has been added to the record since the October 1977 rating decision includes VA treatment report from November 2011 wherein the Veteran was found to have normal hearing sensitivity from 250 to 3000 Hertz, and moderate sensorineural hearing loss at 4000 Hertz, rising to normal hearing at 8000 Hertz, bilaterally. The Board finds that the evidence submitted is new and material. In this regard, it is not cumulative or redundant of the evidence previously of record. Moreover, when considered with the previous evidence of record, it raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability. Although the audiometric readings were not available in the November 2011 VA treatment report, the report suggests that the Veteran may have bilateral hearing loss that comports with VA standards to be considered a disability for compensation purposes. Accordingly, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss AND 2. Entitlement to service connection for tinnitus. The Veteran seeks entitlement to service connection for bilateral hearing loss and for tinnitus. His Report of Separation, DD Form 214, reflects that he was a heavy weapons infantryman while on active duty and that he received a marksman M16 badge. Therefore, in-service exposure to loud noise is conceded. The Veteran’s February 1976 service enlistment examination notes preexisting hearing loss. His July 1977 service separation examination indicates that the Veteran had left ear hearing loss that existed prior to service. Prior to discharge from service, he was given an H-2 hearing profile documenting pre-existing hearing loss at entry. While audiometric readings were the same on his enlistment and separation examinations, the Board notes that the Veteran underwent periodic hearing evaluations during service in April 1977 which showed significantly higher decibel loss at the 500, 1000, 2000, and 4000 Hertz pure tone thresholds. This suggests that the Veteran’s impaired hearing in the left ear may have been impacted by exposure to loud noise during service. During an October 2011 VA audiology consultation, the audiologist noted the Veteran’s complaints of “almost constant” tinnitus. During a follow-up VA clinical hearing evaluation in November 2011, the Veteran reported that he has had poor hearing since he served as a gunner on a tank in the Army. Evaluation of the Veteran’s ears normal hearing sensitivity from 250 to 3000 Hertz, and moderate sensorineural hearing loss at 4000 Hertz, rising to normal hearing at 8000 Hertz, bilaterally. Audiometric measurements were not included in the report and it is unclear whether the audiologist used the Maryland CNC Test to obtain speech recognition scores. However, this evaluation suggests there is a possible relationship between the Veteran’s potential hearing loss disability and his military noise exposure. Under these circumstances, the Veteran must be afforded a VA audiological examination to ascertain the nature and etiology of his claimed bilateral hearing loss disability and tinnitus. These matters are REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment of his claimed bilateral hearing loss and tinnitus disabilities. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss and tinnitus. After reviewing the claims file and evaluating the Veteran, the examiner should indicate whether the Veteran has tinnitus and hearing loss for VA purposes (see 38 C.F.R. § 3.385). The examiner should then address the following: (a) If the Veteran has right ear hearing loss for VA purposes, please state whether it is at least as likely as not (50 percent probability or more) that any right ear hearing loss had its onset in service or is otherwise related to service, to include as a result of conceded in-service acoustic trauma. (b) If the Veteran has right ear hearing loss for VA purposes, please state whether it is at least as likely as not (50 percent probability or more) that any right ear hearing loss was present within one year after separation from service. (c) If the Veteran has left ear hearing loss for VA purposes, please state whether such diagnosis is consistent with the left ear hearing loss that was noted as existing prior to service on the Veteran’s service enlistment examination. Assuming the answer is “yes,” please state whether it is at least as likely as not (50 percent probability or more) that any left ear hearing loss, which has been found to have preexisted service, increased in severity during service, to include as a result of conceded in-service acoustic trauma. (d) If the answer to subpart (c) reflects an increase in severity, then please state whether there is clear and unmistakable evidence that such an increase in left ear hearing loss was due to the natural progression of the disability. (e) If the Veteran has tinnitus (the Veteran is competent to report experiencing ringing in his ears), please ask the Veteran when he first noticed tinnitus and then opine as to whether it is at least as likely as not (50 percent probability or more) that any tinnitus had its onset in service, was present within one year after separation from service, or is otherwise related to service, to include as a result of conceded in-service acoustic trauma. The examiner must provide adequate rationale in support of all medical conclusions reached. The Veteran is reminded that VA’s duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran’s claim, including attending VA exams. See, e.g., 38 C.F.R. §§ 3.159(c) (requiring claimant to “cooperate fully with VA’s efforts” to obtain both VA and non-VA medical records) and 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). The Veteran should be aware, that a failure to appear at a scheduled examination without good cause will result in a determination based on the record. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel