Citation Nr: 21073585 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-13 112 DATE: December 9, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT New and material evidence has been received since the August 2011 rating decision as to the claims for entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for reopening the previously denied claims for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Whether new and material evidence has been received to reopen the previously denied claims for entitlement to service connection for bilateral hearing loss. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In addition, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. The Veteran seeks to reopen his previously denied claim for entitlement to service connection for bilateral hearing loss. The Veteran's application for compensation was received in June 2011. His hearing was evaluated in July 2011. The claim was denied in an August 2011 rating decision because no nexus was found to link the Veteran's hearing loss to service. The Veteran did not appeal the rating decision within one year. Therefore, the August 2011 rating decision became final. He filed a new application in June 2016 to reopen the claim. New medical records were associated the claims file including a December 2016 self-referred evaluation. However, the claim was not reopened because the evidence was not new and material. See October 2016 rating decision; January 2017 rating decision. The rating decisions did not list the December 2016 evaluation as evidence considered. During the August 2021 Board hearing, the Veteran testified he was in a motor platoon while stationed in Germany. He believed he experienced noise trauma in service. On one occasion, he served as the gunner on a track line vehicle. When he shot the gun, he was too close to the end of it. He knew he was too close because the sound addled him for a few minutes. The next morning, he saw dried blood on his nose and ears. He noticed a change in his hearing immediately, but it was mostly ringing. After this incident, his hearing worsened over the years. Based on the foregoing evidence, the Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the claim for bilateral hearing loss. Shade v. Shinseki, 24 Vet. App. 110 (2010). The December 2016 evaluation was not properly listed for consideration in the determining whether service connection was warranted. The Veteran testified of facts relevant to the etiology of his disability that were not previously considered. Thus, the evidence is material because it relates to unestablished facts necessary to establish the claim, and the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus v. Principi, 3 Vet. App. 510, 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 117. Thus, the claim for service connection for bilateral hearing loss is reopened. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss was caused by acoustic trauma in service. In a June 2011 Statement, the Veteran wrote that he could hear good before going into the Army. After the motor firing in the Army, he couldn't hear good anymore and had a constant ringing in his ear. See also June 2011 Veteran's Wife Statement; August 2021 Board hearing. Review of the January 2017 rating decision indicates the December 2016 evaluation was not listed as evidence considered for determining whether service connection. The Veteran was afforded a VA examination in July 2011. The examiner concluded that the bilateral hearing loss was not at least as likely caused by or a result of an event in military service. The examiner wrote that the February 1976 entrance examination showed normal hearing and the February 1979 separation examination showed normal hearing. There was no significant threshold shift noted. The Board finds this examination to be inadequate because the examiner did not consider the Veteran's lay statements. An examination is inadequate if it does not consider all the relevant evidence of record including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, remand is required to obtain an examination that considered all the evidence of record. The matters are REMANDED for the following action: 1. Obtain any outstanding medical records related to the claim on appeal and associate them with the claim files, 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his bilateral hearing loss. A complete copy of the Veteran's claims file, including a copy of this remand and any newly obtained treatment records, must be provided to the examiner for review. The examiner is asked to review the entire claims file including the findings of the December 2016 audiological evaluation. The examiner is also asked to acknowledge and comment on the Veteran's lay statements included in the record especially his August 2021 hearing testimony. (Continued on the next page) After review of the claims, the examiner is asked to render an opinion as to whether it is at least as likely at not (50 percent probability or greater) the Veteran's bilateral hearing loss was caused by an in-service injury, event, or illness. A clear rationale must be provided for all opinions expressed. The examiner must consider Veteran's lay statements and post-service treatment records. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion. 3. After ensuring compliance with this remand, readjudicate the claim on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.