Citation Nr: A21017151 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 191022-41974 DATE: October 22, 2021 ORDER New and relevant evidence has been presented to warrant readjudication of the claim for entitlement to service connection for tinnitus. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT New and relevant has been presented that is relevant to the issue of entitlement to service connection for tinnitus. CONCLUSION OF LAW The criteria for readjudication of the claim for entitlement to service connection for tinnitus are met. 38 C.F.R. §§ 3.156, 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2001 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2019 and September 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the August 15, 2019 and September 23, 2019 decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the undersigned Veterans Law Judge during a May 2021 virtual hearing. A transcript of that proceeding is associated with the claims file. The 90-day window ended August 26, 2021. Any submitted evidence relating to the Veteran's condition that occurred after August 15, 2019 and September 23, 2019, may not be considered by the Board in this claim and will not be discussed in this rating decision. 38 C.F.R. §§ 19.2(d), 20.301. Evidence related to the Veteran's claim, to include August 2021 private treatment records, was received within 90 days of the May 2021 hearing. However, this evidence is related to a time period subsequent to the August 15, 2019 and September 23, 2019 rating decisions on appeal. For these reasons, the Board may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered; and the effective date will be preserved if filed within the appropriate time period. Specific instructions for filing a Supplemental Claim are included with this decision. New and relevant evidence Under the AMA, when a claim has been previously disallowed it may not be readjudicated upon the same factual basis, unless the Veteran submits a supplemental claim along with new and relevant evidence. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction (AOJ) will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. §§ 3.156 (d), 3.2501. New evidence is evidence that was not previously part of the record before agency adjudicators at the time of the prior denial. 38 C.F.R. § 3.2501(a). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement to benefits that was not previously addressed. Id. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard. Id. A claim for the Veteran's tinnitus originally was denied in a February 2018 rating decision. There, VA noted that the evidence did not show a link between his "current medical condition and military service." It was highlighted that the August 2017 VA examiner opined that the claimed tinnitus was less likely than not caused by service because his hearing is currently normal and was normal during service, service treatment records did not contain complaints of tinnitus, and after service he worked in occupations which subsequently exposed him to hazardous noise such as truck driving and asbestos abatement. In April 2018, the Veteran filed a statement in support of claim for reconsideration of the February 2018 rating decision. Following, the Veteran filed a timely notice of disagreement in October 2018 contending that his tinnitus is directly caused by in-service exposure to loud military noise while on active duty due to his military occupational specialty, mortarman. In November 2018, the RO issued a statement of the case (SOC) denying service connection for tinnitus. On June 10, 2019, the Veteran submitted a supplemental claim application on VA Form 20-0995. A June 25, 2019 VA audiological hearing examination was associated with the record. The examiner found flat mild sensorineural bilateral hearing loss; and the associated audiogram, while in graphical form, appears to show hearing loss may be present as defined by 38 C.F.R. § 3.385. An opinion as to etiology or whether it may be related to tinnitus was not provided. A July 2019 rating decision denied reopening the claim for tinnitus on the basis that evidence submitted was not new and relevant. The RO made the following favorable findings in the decision: (1) the Veteran has a current diagnosis of tinnitus; and (2) he was exposed to military noise during military service due to his military occupational specialty, mortarman. The Board is bound by favorable findings made by the RO. 38 C.F.R. § 3.104(c). Notably, this rating decision failed to address the June 2019 audiological hearing examination. The Veteran filed a July 2019 supplemental claim application on VA Form 20-0995 contending that the July 2019 rating decision failed to address the June 2019 audiological hearing examination. The August 2019 rating decision on appeal also refused to readjudicate the Veteran's appeal for lack of new and relevant evidence. This decision noted the following favorable findings: (1) the Veteran has a current diagnosis of tinnitus; (2) evidence shows a qualifying event, illness, injury, or disease that had its onset during service, exposure to noise as a mortarman; and (3) tinnitus is a chronic disease which may be presumptively linked to military service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). In this case, the July 2019 and August 2019 rating decisions denied readjudication of the Veteran's appeal on the basis that evidence submitted was not new and relevant. However, the Board finds the June 2019 VA audiological hearing examination was in fact new, as it was not previously before the RO at the time of the June 2019 supplemental claim. The Board finds the evidence also relevant since it may tend to prove or disprove a matter at issue in the claim. Specifically, the August 2017 VA examiner provided a negative nexus for tinnitus due to the lack of a current diagnosis for hearing loss and the lack of an in-service occurrence. However, the June 2019 VA audiological hearing examination, which may tend to prove or disprove current hearing loss (as the reasoning for denying service connection for tinnitus was based, at least in part, by the August 2017 VA medical opinion that no hearing loss was present). Moreover, the favorable findings in the July 2019 and August 2019 rating decisions are pieces of evidence that are also new and relevant. Specifically, the favorable findings made by the RO to include conceded in-service exposure to noise as a mortarman, may tend to prove or disprove a link between the current medical condition and military service. Thus, readjudication of the claim for tinnitus is warranted. REASONS FOR REMAND Entitlement to service connection for tinnitus Entitlement to service connection for bilateral hearing loss For the reasons set forth below, the Board finds that there is a pre-decisional duty to assist error that needs to be remedied before the Board may adjudicate the merits of the appeal. The Veteran underwent a VA examination in August 2017. The examiner found the Veteran's hearing to be within normal limits. As previously mentioned, a June 2019 VA audiological hearing examination was associated with the record. The examiner found flat mild sensorineural bilateral hearing loss; and the associated audiogram, while in graphical form, appears to show hearing loss may be present as defined by 38 C.F.R. § 3.385. Thus, the record reflects a possible decrease in the Veteran's hearing since the August 2017 VA examination. Notably, the Board finds that the June 2019 audiogram results are displayed in a graphical form that has not been converted to an appropriate numerical form. As such, the Board finds a remand is necessary to convert from graphic to numeric form the June 2019 audiogram results. To the extent hearing loss for VA purposes in confirmed, such information relates to the service connection claim for tinnitus. The matters are REMANDED for the following action: 1. Convert from graphic to numeric form the June 2019 VA audiogram, and associate the conversion into the claims file. 2. After completing the above requested action, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.