Citation Nr: 21073260 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-06 557 DATE: December 8, 2021 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right ear hearing loss disability; the claim is reopened. Entitlement to service connection for a right ear hearing loss disability is granted. The appeal of the denial of entitlement to an effective date prior to September 25, 2015, for the grant of service connection for a left ear hearing loss disability is dismissed. REMANDED Entitlement to an initial compensable evaluation for a left ear hearing loss disability is remanded. FINDINGS OF FACT 1. In July 1969 rating decision, the RO denied the claim of entitlement to service connection for a right ear hearing loss disability, no new and material evidence was received within the appeal period, and the Veteran did not disagree with that determination. 2. The evidence received since the July 1969 decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right ear hearing loss disability. 3. The Veteran's right ear hearing loss disability is related to in-service acoustic trauma. 4. On October 18, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of the denial of an effective date prior to September 25, 2015, for the grant of service connection for a left ear hearing loss disability is requested. CONCLUSIONS OF LAW 1. The July 1969 rating decision denying entitlement to service connection for a right ear hearing loss disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Since the July 1969 rating decision new and material evidence to reopen the claim for service connection of a right ear hearing loss disability has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for withdrawal of the appeal of the denial of an effective date prior to September 25, 2015, for the grant of entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C. § 710; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from October 1965 to October 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) The Veteran testified before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing is of record. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right ear hearing loss disability. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The phrase raises a reasonable possibility of substantiating the claim does not create a third element for new and material evidence. Rather, it is simply a component of the question of what new and material evidence is and should be informed by the question of whether the evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade at 117-18. New and material evidence is not required as to each previously unproven element of a claim. Id. at 120. Thus, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See Id. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran's claim of entitlement to service connection for a right ear hearing loss disability was initially denied in a July 1969 rating decision that was not appealed. The RO denied the claim because the Veteran failed to report for a VA audiologic examination, and the presence of a disability was not apparently established. The claim is reopened. After the Veteran filed his claim in September 2015, he was afforded two VA examinations, each of which shows the presence of a current hearing loss disability. This is new and material evidence. Therefore, the claim is reopened. 2. Entitlement to service connection for a right ear hearing loss disability. The Veteran asserts that he incurred a right ear hearing loss disability in service, specifically due to acoustic trauma. Exposure to acoustic trauma is consistent with the circumstances of his service as an Indirect Fire Infantryman. The Board concludes that the Veteran has a current disability that is related to in-service acoustic trauma. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In November 2015 and December 2017, the Veteran received VA audiology examinations. In each case, examination resulted in assessment of a right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. However, each examiner also offered a negative etiological opinion, explaining that the right ear hearing loss disability was less likely than not due to service because the entrance and separation audiograms did not demonstrate a significant threshold shift. In support of his claim, the Veteran submitted a private opinion dated in March 2016 in which the Veteran's treating audiologist attributed the right ear hearing loss disability to military noise exposure. The private audiologist explained that the Veteran had no notable pre- or post-service noise exposure and had no other medical condition to account for the hearing loss. Entitlement to service connection for a right ear hearing loss disability is granted. The Veteran has been diagnosed as having a right ear hearing loss disability per 38 C.F.R. § 3.385. Noise exposure is conceded and consistent with the circumstances of the Veteran's service. The private audiology opinion competently relates the Veteran's right ear hearing loss disability to service. While the VA examiners offered negative etiological opinions, the Board affords those opinions no value because the examiners failed to convert the separation audiogram from ASA to ISO/ANSI standards, which would have reflected a threshold shift of 20 dB at 4,000 Hz in the right ear. Thus, the evidence is at least to equipoise, and the claim is granted. 3. Entitlement to an effective date prior to September 25, 2015, for the grant of service connection for a left ear hearing loss disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the appeal of the denial of entitlement to an effective date prior to September 25, 2015, for the grant of service connection for a left ear hearing loss disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. The hearing transcript reflects that the undersigned Veterans Law Judge, the Veteran's representative, and the Veteran discussed the withdrawal and that the Veteran understood that withdrawal would result in the dismissal and end of this appeal. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for a left ear hearing loss disability is remanded. Considering the grant of service connection for a right ear hearing loss disability, the Board finds this issue cannot be adjudicated until VA effectuates the grant of service connection and assigns the initial evaluation. Moreover, further development is necessary. At his Board hearing, the Veteran testified that his hearing acuity had decreased since his last VA examination in 2017. The Veteran is certainly competent to relate his observation of his hearing acuity. When it is asserted that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Because the Veteran's testimony indicates worsening of his hearing loss disability, he should be afforded a new VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an audiological examination to determine the severity of his bilateral hearing loss disability. The claims file should be made available to the examiner for review in connection with the examination. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. For each ear, the examiner is asked to specifically record the decibel loss at the 1,000, 2,000, 3,000, and 4,000 Hz frequencies, and should provide results of a Maryland CNC word recognition test. The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities. (Continued on the next page) Any opinions must be accompanied by a complete rationale. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.