Citation Nr: 21001323 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-61 940 DATE: January 7, 2021 ORDER New and material evidence having been received, the request to reopen a claim for service connection for bilateral hearing loss is granted. New and material evidence having been received, the request to reopen a claim for service connection for tinnitus is granted. New and material evidence having been received, the request to reopen a claim for service connection for chronic pulmonary obstructive disease (COPD) is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for COPD is remanded. FINDINGS OF FACT 1. An unappealed February 2008 rating decision denied service connection for bilateral hearing loss and tinnitus; an unappealed October 2015 rating decision denied service connection for a pulmonary condition (diagnosed as COPD) and to reopen a claim for service connection for bilateral hearing loss. 2. The additional evidence received since these last final decisions raises a reasonable possibility of substantiating the previously denied claims for service connection for bilateral hearing loss, tinnitus, and COPD. CONCLUSION OF LAW The criteria to reopen the claims for service connection for bilateral hearing loss, tinnitus, and COPD are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to July 1969. In November 2020, the Veteran testified before the undersigned Veterans’ Law Judge. A copy of the transcript is associated with the record. New and Material Evidence Service connection for bilateral hearing loss, tinnitus, and COPD was denied in rating decisions dated in February 2008 (bilateral hearing loss and tinnitus) and October 2015 (COPD). The October 2015 decision additionally declined to reopen the Veteran’s claim for service connection for bilateral hearing loss. The decisions became final when the Veteran did not appeal. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Bilateral Hearing Loss Tinnitus COPD The Board notes that its task is to first decide whether new material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran’s claim. Pertinent evidence added to the record since the aforementioned final decisions includes medical records, statements, and the Veteran’s November 2020 hearing testimony, in which the Veteran testified about the continuity of symptomology of his conditions and his exposure to hazardous materials while in-service. Thus, based on this newly added evidence, the Board finds that new and material evidence has been added to the record which relates to previously unestablished elements of the claims and the claims for service connection for bilateral hearing loss, tinnitus, and COPD are reopened. REASONS FOR REMAND Bilateral Hearing Loss Tinnitus In his hearing testimony, the Veteran stated that his hearing loss began while in-service and continued to present day and that he had intermittent tinnitus. He also stated that he was exposed to hazardous noise as rock crusher while on active duty. See November 2020 hearing transcript. The Board notes that the Veteran’s military occupational specialty was that of an equipment operator. After review of the record the Board finds that the October 2015 VA examination regarding the Veteran’s hearing loss and tinnitus was inadequate as it did not consider the Veteran’s statements regarding continuity and relied upon a presumed normal hearing test at separation. It is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the Board finds that the prior VA examination was inadequate for adjudication purposes and a new examination is warranted. COPD The Board notes that the Veteran has not been afforded a VA examination to determine the etiology of his COPD. After review of the claims file, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran’s claim for service connection for COPD. Accordingly, remand is warranted in order to schedule the Veteran for an appropriate VA examination in accordance with McClendon. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and likely etiology of his bilateral hearing loss and tinnitus. The claims file and all pertinent records must be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus had onset in service or within one year following separation from service, or was causally related to service. The examiner should note that the Veteran’s military occupational specialty was that of an equipment operator and that he was engaged in rock crushing and combat activity while in-service. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure), including any service treatment records or military personnel file records which may have been made a part of the evidence of record and the Veteran’s lay assertions, should be considered in giving this opinion. The Veteran’s November 2020 hearing testimony should be considered. It is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given without resort to speculation, the examiner must explain the reason for that conclusion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his COPD. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD was incurred in, or due to, the Veteran’s service, to include the Veteran’s exposure to rock dust or other hazardous materials while in-service. The Veteran’s lay statements regarding onset and continuity of symptomology, including his November 2020 hearing testimony, should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.