Citation Nr: 21069517 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 20-10 571 DATE: November 18, 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 vertigo is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. An October 2012 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. 3. Additional evidence received since the October 2012 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 October 2012 rating decision that denied a 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. 3. The additional evidence received since the October 2012 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 served on active duty from September 1965 to December 1969. This matter comes on appeal to the Board from a July 2017 rating decision issued by the agency of original jurisdiction (AOJ). 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 for hearing loss was initially denied in a February 2012 rating decision. New and material evidence was submitted within one year of this decision and, thus, the AOJ reconsidered this issue, but continued to deny the claim in an October 2012 rating decision. The Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. Under these circumstances, the Board must find that the October 2012 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 October 2012 rating decision, additional evidence has been associated with the record, including a November 2016 private opinion, which indicated that the Veteran showed a significant hearing loss shift during service on average of about 20 decibels. The examiner continued that the majority of hearing loss is related to a 1975 incident, but prior events may have had some potentiation for some loss and it could have taken away the cochlear reserve. The examiner concluded that it should be considered that he has some military exposure related hearing loss issues. Accordingly, the evidence received since the October 2012 rating decision is new and material as it is not redundant of evidence already of record in October 2012, and relates to the unestablished fact of whether the Veteran's currently diagnosed bilateral hearing 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 vertigo, bilateral hearing loss and tinnitus are remanded. The Veteran asserts that his vertigo, bilateral hearing loss and tinnitus are related to service. Based on the evidence of record and the Veteran's history, it appears that in 1975, six years after his discharge from active service, the Veteran suffered a vertigo episode that resulted in total hearing loss and constant tinnitus. In a January 2012 addendum, the October 2011 VA examiner observed that cochlear implants were required after the sudden hearing loss, which is more consistent with a medical condition, not noise indued hearing loss. Importantly, the VA examiner further indicated that due to concerns of a possible vestibular disorder, the Veteran should be referred to an otologist for evaluation of vertigo. The Board also finds it significant that the November 2016 private examiner indicated that some of the Veteran's cochlear reserve could have been taken away due to inservice noise exposure. The Veteran has not been afforded a VA examination with respect to his vertigo. Given the Veteran's in-service noise exposure and the indication that this could have affected his cochlear reserve, the Board finds that the Veteran should be afforded a VA examination with an otologist, if possible, to determine whether the Veteran has a vestibular disorder related to acoustic trauma in service. Likewise, as the evidence appears to show that the Veteran suffered total hearing loss and constant tinnitus due to vertigo, these issues are inextricably intertwined with the issue of entitlement to service connection for vertigo. Moreover, the Veteran has submitted September 2011, July 2012 and November 2016, which all indicated that the Veteran suffered from some hearing loss due to in-service noise exposure especially given the significant threshold shift on average of 20 decibels during service. The Veteran was afforded a VA examination in May 2017, which found that his hearing loss and tinnitus were not related to service. The examiner essentially rationalized that hearing thresholds were within normal limits at discharge, although there was a slight shift shown in all frequencies. The examiner observed that seven years after service, the Veteran had sudden idiopathic hearing loss, which was inconsistent with noise induced hearing loss. The examiner also indicated that his tinnitus was due to the 1975 episode. However, clarification was requested as the examiner also indicated that tinnitus began in 1969. Subsequently, in a June 2017 addendum opinion, the same examiner stated that in his opinion, the report of tinnitus in 1969 was describing Transient Spontaneous Tinnitus (TST), which is a normal period of tinnitus, usually a high frequency ringing, lasting only a few minutes and is unrelated to military noise exposure. However, the Veteran reported that he noticed tinnitus progressed in volume and duration six years after he left the military, so the examiner opined that it is at least less as likely as not related to highly probably noise exposure as a radarman during this time period. However, the VA examiner did not discuss the private opinions indicating a relationship between the Veteran's hearing loss and service. Moreover, he referred to the threshold shift during service as slight; however, on average it was around 20 decibels as noted by the private examiner, which appears more significant. The examiner also primarily relied on the fact that the Veteran had normal hearing at discharge. However, 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 opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In light of the above, the Board finds that the Veteran should be afforded another VA examination with opinion. Further, it does not appear that the claims file includes any recent treatment records. In light of the need to remand, the AOJ should take appropriate steps to obtain any additional private and VA clinical records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment record pertaining to the issues remaining on appeal. 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 any additional VA clinical records. 3. Schedule the Veteran for a VA examination by an otologist, if possible, to determine the nature and etiology of his vertigo. The examiner must review the claims file. The examiner must opine whether it is at least as likely as not related to service, including any in-service noise exposure. A detailed rationale must be provided. The examiner must address the reports of vertigo in 1975 that lead to the Veteran's total hearing loss and tinnitus; and discuss whether any prior damage to the cochlear reserve contributed to the vertigo episode. If and only if the examiner determines that vertigo is related to service, the examiner must opine whether the Veteran's hearing loss and tinnitus are at least as likely as not proximately due to and/or aggravated by his vertigo. 4. Thereafter, if service connection for hearing loss and tinnitus remains denied, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus. The examiner must review the claims file. The examiner must opine whether his hearing loss and tinnitus at least as likely as not (a) began during active service, (b) manifested within one year after discharge from service, (c) were noted during service with continuity of the same symptomatology since service, or (d) related to an in-service injury, event, or disease, including in-service noise exposure. A detailed rationale must be provided. In proffering this opinion, the examiner must address the September 2011, July 2012 and November 2016 private opinions; the Veteran's lay statements; and significant of the threshold shift seen from September 1965 to September 1969 while in service. 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.