Citation Nr: 20009909 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 18-23 486 DATE: February 5, 2020 ORDER The appeal seeking to reopen a claim for entitlement to service connection for hearing loss is granted. The appeal seeking to reopen a claim for entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for bilateral hearing loss was denied in a May 2008 rating decision that became final. 2. Evidence submitted since the May 2008 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss. 3. In a November 2009 Board decision, the claim of entitlement to service connection for tinnitus was denied because there was no nexus between his diagnosis and his active duty military service. The Veteran did not appeal that decision; it became final. 4. The evidence added to the record since the November 2009 Board decision does not relate to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. New and material evidence has not been received to reopen the claim for entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1969. 1. The appeal seeking to reopen a claim for entitlement to service connection for hearing loss The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The Board finds that new and material evidence has been received. His claim is therefore reopened. In a May 2008 rating decision, the claim was denied because the evidence of record failed to show hearing loss either began in or was caused by active duty service. The Veteran initially filed a Notice of Disagreement in May 2008, but he then withdrew his appeal during hearing testimony presented in August 2008 before a Decision Review Officer. The rating decision therefore became final. The pertinent evidence received since the May 2008 rating decision includes a November 2017 private examiner’s report which diagnosed the Veteran with bilateral sensorineural hearing loss that was related to active duty service. The November 2017 opinion in new and it raises a reasonable possibility of substantiating a claim of service connection for bilateral hearing loss. As such, the Board finds this evidence to be material. Accordingly, the Board finds that new and material evidence sufficient to reopen a claim for entitlement to service connection for hearing loss has been received, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. 2. The appeal seeking to reopen a claim for entitlement to service connection for tinnitus The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The claim was previously denied in a November 2009 Board decision because the Board found that the Veteran did not exhibit tinnitus in service or until many years following discharge from service. Further, the Board found that the Veteran’s currently diagnosed tinnitus was not associated with active duty service. Evidence of record at that time of the Board decision included the Veteran’s service treatment records, a VA examination, as well as the Veteran’s lay statements. The question before the Board is whether new and material evidence has been submitted to reopen the claim. For the reasons that follow, the Board finds that new and material evidence has not been received to reopen his service connection claim and it is denied. Evidence received since the last final November 2009 Board decision includes post-service VA and private treatment records, and the Veteran’s lay statements. This evidence was not of record at the time of the prior final rating decision, and therefore, the medical records are new. However, none of these records show any indication that the Veteran’s tinnitus can be related to his active duty service. Thus, these new records do not address unestablished facts necessary to substantiate the Veteran’s claim. As such, the Board finds that these medical records are not material. Additional evidence, which consists merely of records of post-service treatment that do not indicate in any way that a condition is service-connected, is not new and material. As for the Veteran’s assertions that he suffers from tinnitus due to active duty service, the Board finds they are not “new” as they are cumulative and redundant of assertions made prior to the November 2009 last final denial. The Veteran’s statements and recently submitted medical evidence do not, considering all the evidence old and new, raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received to reopen the Veteran’s service connection claim, and the appeal is denied. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. Having reopened the Veteran’s service connection claim for hearing loss, remand is needed to afford the Veteran a VA examination with opinion on whether any diagnosed hearing loss is related to active duty service. Since this claim is being remanded, the file also should be updated to include all outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file copies of all outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed hearing loss. The examiner is asked to provide an opinion as to whether it is at least as likely as not that any such diagnosed hearing loss is related to active duty service. A complete rationale must be provided for all opinions. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.