Citation Nr: 21073245 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 20-04 488 DATE: December 7, 2021 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim for service connection for bilateral tinnitus is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT In an unappealed January 2014 rating decision, the claims of entitlement to service connection for bilateral hearing loss and tinnitus were denied. The evidence submitted since the January 2014 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for a bilateral hearing loss and tinnitus. CONCLUSION OF LAW The evidence received since the January 2014 rating decision is new and material with respect to the claims of entitlement to service connection for bilateral hearing loss and tinnitus, and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing in his January 2020 VA Form 9 substantive appeal. The Veteran was notified in September 2021 that a hearing was scheduled in October 2021. However, he failed to appear when scheduled, did not provide good cause for his failure to appear, and has not requested the hearing be rescheduled. Therefore, the hearing request has effectively been withdrawn. 38C.F.R. §20.704 (d). Reopened Claims A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 can be neither 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. 38 C.F.R. § 3.156 (a). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. 2. New and material evidence having been received, the claim for service connection for bilateral tinnitus is reopened. The claims of service connection for bilateral hearing loss and tinnitus were denied in a January 2014 rating decision, and the Veteran was notified of the decision in in a letter sent during the same month. He did not initiate an appeal or submit new and material evidence within one year, and the decision became final. 38 C.F.R. § 3.156 (b). In February 2018, the Veteran petitioned to reopen the previously denied service connection claims for bilateral hearing loss and tinnitus. In an April 2018 rating decision, the RO confirmed and continued the previous denials. Evidence submitted since the January 2014 rating decision includes a March 2018 VA examination report and lay statements from the Veteran. Given that the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the January 2014 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection and raises a reasonable possibility of substantiating the claims. Thus, the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss, to include as due to in-service noise exposure. A VA medical opinion received in March 2018 stated that the Veteran's military occupational specialty as a helicopter mechanic had a high probability for hazardous noise. However, the VA examiner opined that the Veteran's hearing loss was not incurred in service on the basis that the Veteran had normal hearing at service separation. The Board notes that the United States Court of Appeals for Veterans Claims (Court), has cautioned that a claim of entitlement to service connection for hearing loss may not be denied by the Board simply because normal hearing was demonstrated in the Veteran's service treatment records. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Therefore, remand is required so that another opinion may be obtained. 2. Entitlement to service connection for tinnitus is remanded. The Veteran also contends he is entitled to service connection for tinnitus. The March 2018 VA examiner opined that the Veteran's tinnitus is at least as likely as not associated with his bilateral hearing loss. Because a decision on the remanded issues of service connection for bilateral hearing loss could significantly impact a decision on the issue of service connection for tinnitus, the issues are inextricably intertwined. A remand of the claim for tinnitus is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner to address the etiology of the Veteran's bilateral hearing loss. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. (Continued on the next page) (a.) The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to service, to include as due to in-service noise exposure from duties as a helicopter mechanic and artillery noise. In addressing this question, the examiner must discuss the possibility of delayed-onset hearing loss and may not rely solely on normal audiometric findings at separation to support the opinion. (b.) A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.