Citation Nr: 21003832 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-40 524 DATE: January 22, 2021 ORDER New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of service connection for tinnitus is reopened. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss was denied in an October 2013 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision and requested reconsideration in August 2014. The denial of the claim was confirmed and continued in a January 2015 rating decision on the same basis. He was notified of this decision, he did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the January 2015 rating decision raises a substantial possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The Veteran’s claim for service connection for tinnitus was denied in an October 2013 rating decision on the basis that the evidence failed to establish a current disability or a nexus to service. He was notified of this decision and requested reconsideration in August 2014. The denial of the claim was confirmed and continued in a January 2015 rating decision on the same basis. He was notified of this decision, he did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 4. Evidence received since the January 2015 rating decision raises a substantial possibility of substantiating the claim of service connection for tinnitus. CONCLUSIONS OF LAW 1. The October 2013 and January 2015 rating decisions are final with regard to the issue of service connection for bilateral hearing loss. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2020). 2. The October 2013 and January 2015 rating decisions are final with regard to the issue of service connection for tinnitus. New and material evidence sufficient to reopen the claim of service connection for tinnitus has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1963 to August 1965. These matters are on appeal from a March 2017 rating decision. In his July 2018 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. In an August 2020 statement, the Veteran withdrew the request for a hearing. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.603(e)(2020). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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 means existing evidence not previously submitted to agency decision makers. 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. New and material evidence is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, 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 to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, 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 generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 1. Bilateral Hearing Loss – New and Material Evidence The Veteran contends that he has bilateral hearing loss that is etiologically related to his active duty service. The Veteran was denied service connection for bilateral hearing loss in an October 2013 rating decision. He requested reconsideration in August 2014 and the denial was confirmed and continued in a January 2015 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the January 2015 rating decision. Therefore, the October 2013 and January 2015 rating decisions are final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 20.1103. The basis for the October 2013 and January 2015 denials was a lack of evidence of a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in January 2015, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has bilateral hearing loss as a result of active duty service. The evidence that was of record at the time of the January 2015 rating decision included the Veteran’s service treatment records, VA treatment records, VA and private examinations, and lay statements from the Veteran and his son. Since the January 2015 rating decision, the Veteran reported in his November 2017 Notice of Disagreement (NOD) that he had “hearing problems” prior to his separation from active duty service. This is not a contention that the Veteran had raised prior to the January 2015 rating decision. As the record now contains more evidence pertinent to the issue of a nexus to service than it did in January 2015, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 2. Tinnitus – New and Material Evidence The Veteran contends that he has tinnitus that is etiologically related to his active duty service. The Veteran was denied service connection for tinnitus in an October 2013 rating decision. He requested reconsideration in August 2014 and the denial was confirmed and continued in a January 2015 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the January 2015 rating decision. Therefore, the October 2013 and January 2015 rating decisions are final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 20.1103. The basis for the October 2013 and January 2015 denials was a lack of evidence of a current disability or a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in January 2015, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has tinnitus as a result of active duty service. The evidence that was of record at the time of the January 2015 rating decision included the Veteran’s service treatment records, VA treatment records, VA and private examinations, and lay statements from the Veteran and his son. Since the January 2015 rating decision, the Veteran reported current tinnitus during a December 2016 VA treatment appointment. As the record now contains more evidence pertinent to the issue of a current disability than it did in January 2015, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in October 2013. The clinician opined that the Veteran’s bilateral hearing loss was not caused by or a result of noise exposure in the military because his hearing was normal at the time of separation from active duty. This is not the correct standard. The absence of evidence of a hearing loss disability in service is not fatal to a veteran’s claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board therefore finds that the VA opinion is inadequate and does not provide a sufficient basis upon which to adjudicate the claim. A remand for an additional VA examination is therefore necessary. Because the Veteran’s entrance and separation examinations were both prior to January 1, 1967, the clinician should assume that the hearing thresholds were recorded using American Standards Association (ASA) units. 2. Service connection for tinnitus is remanded. The Veteran was afforded a VA examination in October 2013. At that time, because the Veteran did not report recurrent tinnitus, the clinician provided no opinion with regard to nexus. The Veteran was afforded an additional VA medical opinion in June 2018, after he reported tinnitus. The clinician noted that the Veteran did not report tinnitus until “many years after his discharge from the service” and cited a study in support of the rationale that the probability of causation by other factors increases as the time of onset after noise exposure increases. Because this is an inadequate rationale, a remand for an additional VA examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his bilateral hearing loss and tinnitus. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must 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 began during active service, is related to an incident of service, or began within one year after discharge from active service. The clinician must also provide an opinion as to whether it is at least as likely as not that the Veteran’s tinnitus began during active service, is related to an incident of service, or began within one year after discharge from active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A May 1964 service treatment record noting a head injury. b. A July 2005 private audiological examination report. c. A July 2014 statement by the Veteran’s son, reporting that the Veteran had had hearing problems since his son was a child and that they had worsened over time. d. A July 2014 medical opinion by the Veteran’s private treating physician. e. An August 2014 statement by the Veteran in which he reported that he did not use hearing protection during his active duty service. e. A January 2015 VA examination report for residuals of traumatic brain injury (TBI) in which the Veteran ascribed his hearing loss to his head injury. f. A December 2016 VA treatment record noting the Veteran’s report of tinnitus and worsened hearing loss. g. The Veteran’s report in his November 2017 Notice of Disagreement (NOD) that he “had hearing problems” prior to his separation from active duty service. h. The Veteran’s statements in his July 2018 substantive appeal (VA Form 9) regarding the etiology and continuity of his hearing loss. Because the Veteran’s entrance and separation examinations were both prior to January 1, 1967, the clinician should assume that the hearing thresholds were recorded using American Standards Association (ASA) units. The rationale for any opinion expressed should be provided. Note that an absence of hearing loss in service cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.