Citation Nr: 21073391 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-05 812A DATE: December 8, 2021 ORDER New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An unappealed April 2013 rating decision denied service connection for bilateral hearing loss and tinnitus. 2. Additional evidence received since the April 2013 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 tinnitus and raises a reasonable possibility of substantiating the claim. 3. The Veteran's tinnitus had its initial onset during his active service. CONCLUSIONS OF LAW 1. The April 2013 rating decision denying service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1970 to June 1972. This appeal comes to the Board of Veterans' Appeals from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for bilateral hearing loss and tinnitus. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2021. A transcript of the hearing has been associated with the claims file. 1. New and material evidence The Veteran's claim of service connection for bilateral hearing loss and tinnitus was originally denied by an April 2013 rating decision. The agency of original jurisdiction (AOJ) determined that the medical evidence of record did not show that the Veteran's bilateral hearing loss and tinnitus occurred had their initial onset until many years post-service and that the evidence did not otherwise shown that either disability was the result of his active service. Reference was made to a VA examination that noted inconsistent findings on examination, which prevented the examiner from providing a fully informed opinion. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final for this issue. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran's petition currently before the Board to reopen his claim for service connection for bilateral hearing loss and tinnitus was received by the AOJ in February 2015. The AOJ granted the petition to reopen the claim and denied the claim on the merits in the May 2015 rating decision. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself, or when considered within previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of the AOJ's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in the light of all the evidence. Justus, 3 Vet. App. at 512. Evidence added to the record since April 2013 includes a January 2015 VA audiology consult which noted that the Veteran was seen for a re-evaluation of hearing. The hearing tests conducted included air and bone conduction tests, as well as speech reception threshold and word recognition scores. The test results indicated a mixed loss of hearing in the let ear with a flat tympanogram. The Veteran also stated that he felt that there had been a change in his hearing acuity since he was last examined, and that he was willing to come in for a new examination and provide accurate responses to testing. He additionally testified that his tinnitus started in service. The audiology consult and personal testimony is new evidence in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the April 2013 rating decision. That evidence is also material in that it relates to unestablished facts necessary to substantiate the claim for service connection for bilateral hearing loss and tinnitus as it tends to establish the presence of current disabilities that are related to the Veteran's active service. Since the evidence is both new and material, the claim of service connection for bilateral hearing loss and tinnitus is reopened. 2. Entitlement to service connection for tinnitus The Veteran claims that his tinnitus is due to his service. During his September 2021 hearing, the Veteran testified that his tinnitus began in service. He related that he first noticed his tinnitus during ammunition target practice that took place when he the ship he was serving aboard was stationed in Guantanamo Bay in 1970 and 1971 for Fleet Training, as well as when he was serving aboard a medical cruise ship. He also noted exposure to the machines located in the bowels of the ship when he worked in the bowels as a main boatswain's mate. The record establishes a current disability. Tinnitus was diagnosed at the May 2015 VA examination. The Veteran is also deemed competent to report and diagnose tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran similarly offered competent testimony that he first noticed tinnitus after his in-service exposure to noise. Given his report of military noise exposure to ammunition training, specifying that he was part of the Fleet Training Group with the Navy during the Vietnam War, the Board finds no reason to question the Veteran's report that his tinnitus started in service. Thus, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus had its onset in service. As all the elements necessary for establishing service connection are met and the claim is granted. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Having reopened the Veteran's claim for service connection for bilateral hearing loss, the Board finds that additional development is required before it may render a decision. At his March 2013 and May 2015 VA examinations, the Veteran was found to not have hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. However, at the September 2021 hearing, the Veteran asserted that his hearing has worsened since his last VA examination. It was emphasized during the hearing that his most recent VA examination is now over six years old. He also indicated that he would fully participate in any future examination. A remand is warranted to ascertain whether the Veteran suffers from VA compensable bilateral hearing loss that it etiologically related to his service. The Board notes that both the VA examiners were unable to confirm hearing loss for VA compensation purposes because the audiometric testing results were deemed inconsistent or unreliable. As such, the Veteran should remain mindful that his full and faithful cooperation is needed when he is afforded a new VA examination to ascertain whether he suffers from VA compensable bilateral hearing loss that it etiologically related to his service. The Board observes that the Veteran's VA treatment records only go to May 2015. As the Veteran testified that he is treated exclusively by VA for his bilateral hearing loss, current VA treatment records should provide the most information concerning the current severity of the Veteran's bilateral hearing loss. See September 2021 hearing transcript. On remand, the AOJ should attempt to obtain and associate all VA treatment records from May 2015 to the present concerning the Veteran's bilateral hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination with an appropriate examiner to determine the nature and etiology of the Veteran's bilateral hearing loss. The examiner must state whether hearing loss for VA purposes has been demonstrated at any time during the appeal period. If hearing loss for VA purposes has been diagnosed, opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed hearing loss began during service, within one year of separation from service, or is otherwise related to an in-service injury, event, or disease, including conceded in-service noise exposure. In rendering this opinion, the examiner must discuss the Veteran's credible lay statements and his service treatment records. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.