Citation Nr: 21075301 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-42 952 DATE: December 20, 2021 ORDER The application to reopen a claim of service connection for a broken septum is granted. The application to reopen a claim of service connection for bilateral hearing loss is granted. REMANDED The issue of service connection for residuals of a broken septum is remanded. The issue of service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the September 2010 rating decision that denied the claims of service connection for broken septum and bilateral hearing loss, and new and material evidence was not received within one year of that decision. 2. Evidence received since the September 2010 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claims of service connection for broken septum and bilateral hearing loss. CONCLUSIONS OF LAW 1. The September 2010 rating decision denying the Veteran's claim of service connection for broken septum is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The September 2010 rating decision denying the Veteran's claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 3. Since the September 2010 rating decision, new and material evidence has been received to reopen the claim of service connection for broken septum. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. Since the September 2010 rating decision, new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1970 to February 1972. These matters come before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of a United States Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's November 2015 VA Form 9, he requested a Board hearing. In July 2021, the Veteran was afforded a Board hearing regarding the issue of service connection for hypertension; the issue of service connection for hypertension is in a separate appeal stream and will be addressed in separate Board decision. In an October 2021 VA 27-0820 Report of General Information, the Veteran indicated that he wished to withdraw his hearing request and requested that Board make a determination based on the evidence of record. See October 2021 VA 27-0820 Report of General Information. Accordingly, the hearing request is deemed withdrawn. The issue of service connection for residuals of a broken septum has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). New and Material Evidence Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 1. Whether new and material evidence has been received to reopen a claim of service connection for broken septum. By way of background, in a September 2010 rating decision, the RO denied the Veteran's claim of service connection for broken septum, on the basis that the Veteran had no current diagnosis of broken septum and that there was no evidence that it was incurred in or caused by service. Later that month, in a September 2010 notification letter, the Veteran received notice of the September 2010 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the September 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In April 2013, the Veteran submitted an application to reopen his previously denied claim of service connection for broken septum. Relevant evidence received after the final September 2010 rating decision includes the Veteran's statements in his February 2014 Notice of Disagreement, asserting that during service, a projectile from a 54 caliber hit him in the nose and broke it. Additionally, after the final September 2010 rating decision, the Veteran submitted a June 1990 private treatment record, where the Veteran's private treatment physician indicated that the Veteran "sustained trauma to the nose in his line of duty as a border patrol agent and has had subsequent nasal obstruction." Although the evidence of record prior to the final September 2010 rating decision included treatment records regarding the Veteran's 1990 nasal obstruction, evidence was not submitted until years after the September 2010 rating decision suggesting that the Veteran had or has a broken nose due to trauma that occurred during service. As such, the Veteran's statements providing additional evidence regarding his in-service injury and the June 1990 private treatment record (which suggests the Veteran had or has a broken nose due to trauma that occurred during service) was not previously considered in the last prior final denial and such evidence relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim of service connection for a broken septum are met. The Board notes that additional military personnel records and ship logbooks were associated with the Veteran's claims file after the September 2010 final rating decision; however, they did not relate to the basis on which the Board is granting the application to reopen the claim of service connection for broken septum, as those records are not relevant to the issue of service connection for broken septum or the additional service records were redundant of the evidence of record prior to the September 2010 rating decision. Consideration of the provisions of 38 C.F.R. § 3.156(c) (2017), relating to the receipt of relevant official service department records, is therefore not required. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (accepting VA's interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c), i.e., that as used in § 3.156(c)(1), "relevant" means noncumulative and pertinent to the matter at issue in the case). 2. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. By way of background, the RO first issued a rating decision denying the Veteran's claim of service connection for bilateral hearing loss in February 1972; the RO reasoned that hearing loss was not shown by the evidence of record. The Veteran was informed of his right to appeal but did not do so. Furthermore, new and material evidence was not received within one year of the February 1972 rating decision. Therefore, the February 1972 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. In a May 1980 rating decision, the RO denied service connection for bilateral hearing loss, as the Veteran did not present new and material evidence. In a June 1991 rating decision, the RO denied reopening the Veteran's previously denied claim of service connection claim for bilateral hearing loss. There, the RO noted that while private treatment records reflected mild hearing loss since 1978, it was not new and material evidence which would service to establish service connection for hearing loss with ear infection. In January 2006 and September 2010 rating decisions, the RO denied reopening the Veteran's previously denied claim of service connection claim for bilateral hearing loss, on the basis that new and material evidence had not been submitted since the prior final rating decision. In a September 2010 notification letter, the Veteran received notice of the September 2010 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the September 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In April 2013, the Veteran submitted an application to reopen his previously denied claim of service connection for bilateral hearing loss. Relevant evidence received after the final September 2010 rating decision includes VA treatment records that suggest that the Veteran may have bilateral hearing loss for VA purposes (as he was fitted for a hearing) and the Veteran's statements during VA treatment visits where he provided further details as to his in-service noise exposure. See VA treatment records (January 2013; February 2013). As such, the Veteran's statements providing further details regarding his in-service noise exposure and the VA treatment records (regarding possible bilateral hearing loss for VA purposes) were not previously considered in the last prior final denial and such evidence relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim of service connection for bilateral hearing loss are met. As indicated above, additional military personnel records and ship logbooks were associated with the Veteran's claims file after the September 2010 final rating decision; they did not relate to the basis on which the Board is granting the application to reopen the claim of service connection for bilateral hearing loss, as those records are not relevant to the issue of service connection for bilateral hearing loss or the additional service records were redundant of the evidence of record prior to the September 2010 rating decision. Consideration of the provisions of 38 C.F.R. § 3.156(c) (2017), relating to the receipt of relevant official service department records, is therefore not required. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (accepting VA's interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c), i.e., that as used in § 3.156(c)(1), "relevant" means noncumulative and pertinent to the matter at issue in the case). REASONS FOR REMAND 1. The issue of service connection for residuals of a broken septum is remanded. The Veteran claims that he has residuals of a broken septum and that during service, a projectile from a 54 caliber hit him in the nose and broke it. See Veteran's Notice of Disagreement (February 2014). As indicated above, in a June 1990 private treatment record, the Veteran's private treating physician indicated that the Veteran "sustained trauma to the nose in his line of duty as a border patrol agent and has had subsequent nasal obstruction." The Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the nature and etiology of his residuals of a broken septum. As the evidence indicated that the Veteran may have residuals of a broken septum that may be associated with service, a remand is warranted to schedule the Veteran for a VA examination. 2. The issue of service connection for bilateral hearing loss is remanded. The Veteran claims that his bilateral hearing loss is due to in-service noise exposure, as he was exposed to loud noises, such as loud artillery, during service, and loud noise while aborad ship. See VA treatment record (January 2013). The Veteran's DD Form 214 shows that the Veteran was aboard the USS RATHBURNRNE and that his military occupational specialty was a damage controlman. The Veteran's VA treatment records contains the Veteran's reports that he has difficulty hearing and that he has hearing aids. See VA treatment record (February 2013). In this case, the Veteran has not been afforded a VA examination since May 1980, at which time it appeared that he did not have bilateral hearing loss for VA purposes. The evidence of record suggest that the Veteran's bilateral hearing loss has worsened since the May 1980 VA examination, as he has been fitted for hearing aids since that time. The Board finds that a remand is necessary to schedule the Veteran for a VA examination regarding the nature and etiology of his bilateral hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding his claim of service connection for residuals of a broken nose. The examiner should review the entire claims file, before answering the following: a. Identity whether the Veteran has or had residuals of a broken nose since the date of his claim in April 2013. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's residuals of a broken nose had its onset in service or is otherwise related to service. The examiner should address the June 1990 private treatment record where the Veteran's private treating physician indicated that the Veteran "sustained trauma to the nose in his line of duty as a border patrol agent and has had subsequent nasal obstruction." The examiner must provide a rationale. 2. Schedule the Veteran for an audiological examination. The audiologist should conduct audiometric and speech discrimination (Maryland CNC) testing of the right and left ear. Then, the audiologist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss had its onset during or is otherwise the result of his military service, to include as due to his in-service noise exposure. The VA audiologist should provide a rationale for the opinion. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, 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.