Citation Nr: 20021529 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-02 098 DATE: March 26, 2020 ORDER The appeal seeking entitlement to service connection for bilateral pseudophakia and bilateral macula scar (claimed as diabetic retinopathy) is dismissed. The petition to reopen a previously denied service connection claim for bilateral hearing loss is granted. The petition to reopen a previously denied service connection claim for tinnitus is granted. REMANDED Entitlement to service connection claim for bilateral hearing loss is remanded. Entitlement to service connection claim for tinnitus is remanded. FINDINGS OF FACT 1. During the February 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal seeking entitlement to service connection for bilateral pseudophakia and bilateral macula scar. 2. In an August 2006 rating decision, the RO reopened and denied claims for service connection bilateral hearing loss and tinnitus. 3. The evidence received since the August 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to service connection for bilateral pseudophakia and bilateral macula scar are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2019). 2. The August 2006 rating decision reopening and denying service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2019). 3. The additional evidence received since the August 2006 rating decision is new and material and the claims for service connection for bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to April 1968. In February 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, during the February 2020 hearing, the Veteran indicated that he wished to withdraw his appeal for the issue of entitlement to service connection for bilateral pseudophakia and bilateral macula scar. The undersigned specifically ensured that the Veteran understood the ramification of withdrawing the claim, and the Veteran confirmed that he in fact understood. The Board concludes that with regard to this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and the appeal is dismissed. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2019). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Board decisions are final on the date issue, unless the Chairman of the Board orders reconsideration. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the present case, in an August 2003 rating decision, the RO denied the Veteran’s original service connection claim for bilateral hearing loss, finding no evidence of a nexus. The Veteran timely appealed the decision in August 2004 and a statement of the case (SOC) was issued in November 2004; however, the Veteran did not timely perfect his appeal and the August 2003 rating decision became final. In a November 2004 rating decision, the RO denied the Veteran’s original service connection claim for tinnitus. In November 2005, the Veteran submitted a substantive appeal (VA Form 9), which the RO construed as a petition to reopen claims for bilateral hearing loss and tinnitus. Although the RO construed the claim as such, the Board notes that the Veteran did not mention tinnitus in this submission, and as such, while within a year of the denial of service connection for tinnitus, such is not considered new and material evidence. Since the Veteran did not timely appeal the November 2004 rating decision that denied service connection for tinnitus and new and material evidence was not received within a year of the denial, this decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Subsequently, in an August 2006 rating decision, the RO reopened and denied the service connection claims for bilateral hearing loss and tinnitus, again finding no evidence of a nexus. The Veteran did not appeal this decision and new and material evidence was not received within one year of the decision. Thus, the August 2006 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the final denial in August 2006 includes the Veteran’s November 2013 petition to reopen, additional VA treatment records, the Veteran’s February 2020 hearing testimony, and a private audiologist’s opinion that the bilateral hearing loss and tinnitus were related to the noise exposure in service. This evidence relates to an unestablished fact of a nexus in a last final denial. This evidence is therefore new and material, and the criteria for reopening the claim for service connection for bilateral hearing loss and tinnitus are met. REASONS FOR REMAND A remand is necessary to provide the Veteran with a new VA examination to help determine the likely etiology of the claimed bilateral hearing loss and tinnitus. The Veteran’s separation examination showed normal hearing and he specifically denied having any ear problems. According to August 2002 VA treatment record, the Veteran reported that he had a very large mass behind his right ear during service, and after its removal, he had constant problems with his right ear, including chronic ear pain and impaired hearing. A March 2003 VA ENT treatment note indicated that the Veteran had high-frequency sensorineural hearing loss. It further noted that the Veteran had history of noise exposure in combat and had vocal cord nodules removed in 1985. The Veteran further reported that he had a history of otitis externa and noted that Cortisporin seemed to help. The ENT stated that while the audiogram revealed moderate-to-moderately severe hearing loss, it was a symmetric loss. In June 2003, the Veteran underwent a VA audiology examination, at which time he indicated that he had hearing loss since service. He further reported civilian noise exposure as a truck driver but noted that this noise was not excessive. Regarding tinnitus, he indicated that he had tinnitus that lasted for three days in serviced. In a July 2003 addendum, the examiner opined that the fact that the Veteran recovered from the acoustic trauma after three days and his audiograms were normal at separation, it was likely that the hearing loss was due to occupational noise exposure after service and not due to noise exposure in service. In support of his claim, the Veteran submitted a private July 2004 statement, in which a physician stated that the Veteran was exposed to hazardous noise in service and at times it was so bad that he would lose his hearing for days with subsequent loud ringing. The physician stated, “In my medical judgment, his current hearing loss is due in part to his loud noise exposure while on duty in the Vietnam War.” A rationale was not provided. In May 2014, a VA examiner again opined that the diagnosed bilateral hearing loss and tinnitus were less likely than not related to service. The examiner explained that the Veteran’s hearing was within normal limits at both enlistment and separation from service, and given this, the current hearing loss was likely due to civilian noise exposure post-service and not military noise exposure. Regarding tinnitus, the examiner explained that the Veteran reported in 2003 that the tinnitus was “currently infrequent and occurs only when he is exposed to loud noises.” The same report also noted that the Veteran had tinnitus for three days that then resolved. The examiner concluded that the fact that tinnitus only occurred temporarily after exposure to loud sounds even as a civilian, it was less likely than not related to noise exposure in service. In February 2020, the Veteran submitted a January 2005 statement from his physician who noted that the Veteran had a history of noise exposure in service and stated, “I feel his high frequency sensorineural hearing loss most likely associated with loud noise exposure from service.” A rationale however was not provided. Given the conflicting evidence and the fact that the VA examiners did not address the Veteran lay assertions, obtaining a new VA examination is necessary prior to deciding the claims on the merits. The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA audiology examination to help determine the likely etiology of the claimed bilateral hearing loss and tinnitus. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran the history and onset of symptoms of his difficulty hearing and tinnitus. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran’s conceded exposure to hazardous noise during service. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the reported tinnitus is related to the Veteran’s conceded exposure to hazardous noise during service. In doing so, please specifically address the Veteran’s lay assertions. A complete rationale should be provided for all opinions.   3. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate 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.