Citation Nr: 21069113 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-27 459 DATE: November 17, 2021 ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A December 1997 rating decision denied entitlement to service connection for bilateral hearing loss; the Veteran failed to file a notice of disagreement to initiate an appeal of this issue and new and material evidence was not received within one year. 2. Additional evidence received since the December 1997 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 1997 rating decision that denied the claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence received since the December 1997 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1965 through September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 decision, the Board denied the Veteran's claim to reopen the issue of entitlement to service connection for bilateral hearing loss. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and remanded the appeal to the Board for action consistent with the terms of the JMPR. In September 2020, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. Subsequently, in a March 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for generalized anxiety disorder with persistent depressive disorder; representing a full grant of the benefit sought on appeal. Additional relevant VA clinical records have been associated with the claims file that have not been considered by AOJ. Nevertheless, as the Board is reopening and remanding this issue on the merits, there is no prejudice to the Veteran in proceeding with this decision as the AOJ will have the opportunity to consider this evidence on remand. Whether new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss The Veteran is seeking to reopen his claim for service connection for bilateral hearing loss. Service connection was initially denied in a December 1997 rating decision because the Veteran did not meet the criteria for a hearing loss disability for VA purposes; and there was no evidence that the Veteran had hearing loss due to service. The Veteran did not initiate an appeal from this determination with respect to this issue and new and material evidence was not received within one year. Under these circumstances, the Board must find that the December 1997 rating decision became final with respect to this issue. 38 U.S.C. § 7105(c); 38. C.F.R. 3.104, 20.302, 20.1103. Rating actions 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 an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § § 7105(b) and (c); 38 C.F.R. § § 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the December 1997 rating decision, additional evidence has been associated with the record, including VA clinical records, a June 2018 VA fee-based examination and statements from the Veteran. VA clinical records show that the Veteran has been prescribed hearing aids by the VA. Importantly, the June 2018 VA examination shows that the Veteran meets the criteria for a hearing loss disability for VA purposes. In his statements, the Veteran has asserted that he began experiencing hearing loss issues in service and had to give up playing instruments directly after service due to an inability to maintain pitch. Accordingly, the evidence received since the December 1997 rating decision is new and material as it is not redundant of evidence already of record in December 1997 and relates to the unestablished fact of whether the Veteran has a current diagnosis of bilateral hearing loss that may be related to service. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for bilateral hearing loss is reopened. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. In light of reopening this issue, the Board finds that further development is necessary. The June 2018 VA examiner found that the Veteran's hearing loss was not related to service. The examiner rationalized that the Veteran's hearing was normal upon discharge and thresholds were too low for any permanent significant shift. There was no evidence of permanent auditory damage on active duty and no report of decreased hearing in claims file or at separation. The examiner concluded that although noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone and thus, no nexus is established. Nevertheless, importantly, in a May 2018 statement, the Veteran reported that he was a trumpet player in the Army band and towards the end of his enlistment, he was having issues tuning his instrument and getting the correct pitch. Further, the Veteran stated that directly after service, he gave up playing instruments due to the loss in frequency and inability to maintain pitch. In a prior November 1997 statement during his initial claim for service connection, the Veteran indicated that he had suffered 50 percent hearing loss in right ear and was told to purchase hearing aids at a recent examination, but he had no medical insurance. However, the examiner failed to consider the Veteran's lay statements indicating that he has suffered from hearing loss since service. Further, the examiner primarily relied on the fact that the Veteran had normal hearing at discharge. Nevertheless, the Veteran does not have to show hearing loss at the time of discharge in order to establish service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the opinion is inadequate as the examiner did not appear to consider all the relevant evidence or, in light of such, provide sufficient rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, the Board finds that the Veteran should be afforded another VA examination with opinion. Again, in the November 1997 statement, the Veteran indicated that he had undergone a recent hearing test and it was recommended that he get hearing aids. However, it does not appear that any attempts have been made to obtain this test. As this evidence is pertinent to the current claim, the AOJ must take appropriate steps to obtain a copy of this test. Likewise, additional VA clinical records dated from March 2021 to the present should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the 1997 hearing test as well as any other relevant private treatment records pertaining to his hearing loss. Make two requests for the authorized records from any identified physicians and facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain additional VA clinical records dated from March 2021 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss. The claims file must be reviewed. The examiner must opine whether it at least as likely as not that the Veteran's hearing loss (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including inservice noise exposure. A detailed rationale must be provided. In proffering this opinion, the examiner must address the Veteran's lay statements indicating that he began experiencing symptoms in service that have continued to the present, including an inability to tune his instrument and maintain pitch. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.