Citation Nr: 20004820 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-42 997 DATE: January 21, 2020 ORDER The claim of entitlement to service connection for bilateral hearing loss is reopened; to this limited extent, the appeal 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 December 2011 rating decision, the RO denied the Veteran service connection for bilateral hearing loss on the basis that evidence of onset of this disability during service was not presented. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision and it became final. 2. Evidence received since the December 2011 rating decision suggests onset of a bilateral hearing loss disability during or shortly following service. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Whether new and material evidence has been received to reopen a service connection claim for bilateral hearing loss The Veteran seeks to reopen a service connection claim for bilateral hearing loss. In a prior December 2011 rating decision, service connection for bilateral hearing loss was denied. Because the Veteran did not file a timely appeal of this determination, this rating decision is final. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service connection for bilateral hearing loss was denied in a December 2011 rating decision on the basis that there was no competent evidence of onset of hearing loss during service. While the Veteran had a current diagnosis of hearing loss, competent evidence establishing a nexus with service was not presented. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and these denials became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the prior final denial, the Veteran submitted various private treatment records, including September 2017 and November 2019 statements from K.D., M.D. Dr. D. opined that the Veteran had a current diagnosis of bilateral hearing loss which was related to his noise exposure during active duty service. As this evidence was not of record at the time of the December 2011 denial, it is new. As this evidence suggests the Veteran has a current diagnosis of bilateral hearing loss which is due to noise exposure in service, this evidence is also material to both the claim of service connection for bilateral hearing loss and for tinnitus. Accordingly, new and material evidence has been received, and this claim is reopened. 38 C.F.R. § 3.156(a). To that limited extend, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran seeks service connection for bilateral hearing loss and for tinnitus. In support of his claim, the Veteran submitted private medical treatment records and medical opinion statements establishing both that he has current diagnoses of bilateral hearing loss and tinnitus, and that these disabilities are related to in-service noise exposure. The Veteran was also afforded a VA examination in August 2015. The VA examiner determined, however, that the Veteran displayed poor inter-test reliability, and thus the hearing results were unreliable and invalid, according to the examiner, and audiometric findings were not reported. Nevertheless, the examiner provided a negative opinion regarding etiology of the Veteran’s bilateral hearing loss and tinnitus, suggesting these disabilities were unrelated to acoustic trauma in service. In light of the private medical opinions received since this examination as well as the lack of adequate findings, the Board finds that an additional VA examination is necessary. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. The claims file must be provided to the examiner in conjunction with the examination. Following examination of the Veteran and review of the claims file, the examiner should explain whether it is at least as likely as not (50 percent or greater probability) that any current hearing loss is caused by or related to in service noise exposure. The examiner should consider whether the Veteran's bilateral hearing loss is a delayed reaction to his in-service noise exposure. If the examiner concludes that the finding of essentially normal hearing on separation from service is an indication that the current hearing loss is not due to noise exposure during active duty, the reason for such a conclusion must be fully explained. It should be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. The examiner is also asked to determine whether the Veteran's tinnitus was at least as likely as not (50 percent or greater probability) caused by service, or whether his tinnitus is at least as likely as not (50 percent or great probability) caused or aggravated by his hearing loss. A clear rationale must be provided for all opinions. The examiner is also requested to review the private audiological examinations and opinions, as well as the October 2019 treatise evidence submitted by the Veteran. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.