Citation Nr: 20021076 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-10 434 DATE: March 24, 2020 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for bilateral hearing loss, and the appeal is granted to this extent only. New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for tinnitus, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. An August 2012 rating decision most recently denied service connection for bilateral hearing loss. Notice was provided and there was no timely appeal. 2. Evidence received since the August 2012 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss and it raises a reasonable possibility of substantiating the claim. 3. An August 2012 rating decision most recently denied service connection for tinnitus. Notice was provided and there was no timely appeal. 4. Evidence received since the August 2012 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2012 denial of the claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1100. 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156. 3. The August 2012 denial of the claim of service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1100. 4. New and material evidence has been received to reopen the previously denied and final claim of service connection for tinnitus. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to June 1976. A Travel Board of Veterans’ Appeals (Board) hearing was held in January 2020. A transcript of this hearing is contained within the claims file. 1. New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for bilateral hearing loss. 2. New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for tinnitus. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Veteran originally filed a claim for service connection for bilateral hearing loss and tinnitus in May 2005. In August 2005, the Agency of Original Jurisdiction (AOJ) issued a rating decision denying service connection for bilateral hearing loss and tinnitus. A notification letter was sent to the Veteran informing him of the decision, he did not appeal within one year following notification and the August 2005 rating decision became final. In November 2010, the Veteran filed a claim to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus. In August 2012, the AOJ issued a rating decision, reopening the Veteran’s claims but confirming and continuing the previous denial of these claims. A notification letter was sent to the Veteran informing him of the decision, he did not appeal within one year following notification and the August 2012 rating decision became final. In November 2013, the Veteran filed a claim to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus. In August 2014, the AOJ issued a rating decision confirming and continuing the previous denial of these claims, finding that new evidence had been received, but that the evidence received was not material as it did not relate to an unestablished fact necessary to substantiate the claims. A notification letter was sent to the Veteran informing him of the decision. In April 2015, the Veteran submitted a Notice of Disagreement (NOD) disagreeing with the rating decision as it relates to these claims. The December 2016 Statement of the Case (SOC) also addressed the merits of the claims but continued the denial of the claims. The Veteran filed his VA Appeals Form 9 in February 2017. Regardless of the decision of the AOJ to reopen these claims, the Board must make its own determination, as this in turn establishes the Board’s jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). On this basis and looking to the August 2012 final decision, the record now contains current VA medical treatment records, one with an impression specifically indicating that the Veteran’s bilateral tinnitus is related to the Veteran’s bilateral hearing loss, which was probably aggravated by his military service. The Board finds that this evidence was not of record at the time of the August 2012 rating decision denying the claims and is therefore new. Moreover, it is material, as it provides findings possibly supporting the Veteran’s assertions and thereby presents a reasonable possibility of substantiating the claims. The evidence is not cumulative or redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran’s claims will turn. For these reasons, the claims are reopened.   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 is seeking entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends that his hearing was damaged during his military service while serving in the field artillery when he was caught in front of howitzers on several occasions while they were firing. The Veteran further contends that he was not provided with hearing protection and he denies post-service excessive noise exposure. The only VA examination that the Veteran was afforded was in July 2005. The July 2005 examiner noted that the Veteran reported constant, bilateral tinnitus that he rated as mild and the Veteran reported that he was unsure when his tinnitus began but estimated that it began 20 years prior to the July 2005 VA examination. The examiner opined that the Veteran’s reported bilateral tinnitus is not likely caused by or related to his in-service noise exposure as it reportedly began following his discharge. The examiner additionally opined that the Veteran’s hearing loss is not caused by or related to his in-service noise exposure because the Veteran’s records indicate that he had normal hearing upon his discharge from the military. No additional rationale was provided for either etiological opinion. The Board notes that it is now well-established by caselaw (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)) that hearing loss and/or tinnitus need not be shown in service to be found service connected. As such, the July 2005 opinions, relying on the fact that the Veteran did not have symptoms of hearing loss or tinnitus during his military service, are not sufficient findings to decide the claim in light of other evidence of record. The Board additionally notes that the Veteran submitted an October 2012 VA medical treatment note that contains an impression of bilateral tinnitus, left greater than right secondary to sensorineural hearing loss, probably aggravated by loud noise exposure while in the military. No particular rationale was provided. This impression is inadequate for rating purposes as this impression was expressed in speculative language and does not provide any rationale for the opinion offered. This too is insufficient to decide the claim. Thus, remand is necessary to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of all outstanding records from the VA Medical Center and its associated clinics where the Veteran receives treatment. If any pertinent private treatment has been rendered, the Veteran’s assistance in obtaining these records should be requested as needed, specifically to include any additional information that the Veteran can provide concerning the hearing test conducted by the dean of his college in the summer of 1981. All attempts to obtain records should be documented in the claims file. 2. Arrange for a VA audiometric examination with an appropriate provider. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran’s current bilateral hearing loss and/or tinnitus disabilities had its onset in service or is otherwise related to active service; this should include whether the type of hearing loss now shown is consistent with acoustic trauma, advancing age, infection, or some other cause. It should also be indicated whether the type of hearing loss found is that which would be consistent with acoustic trauma. (b.) It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. 3. After the development requested has been completed, the AOJ should review the expanded record to ensure complete compliance with the directives of this REMAND. If any report is deficient in any manner, implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.