Citation Nr: 21076467 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-44 273 DATE: December 23, 2021 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for bilateral hearing loss, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A November 2011 rating decision denied service connection for bilateral hearing loss. The Veteran filed a timely notice of disagreement (NOD) in December 2011. He was provided with a statement of the case (SOC) in November 2013. He was notified of his rights, but a timely VA Form 9 substantive appeal was not received following the SOC. 2. Evidence received since the November 2013 SOC is not cumulative, it relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral hearing loss disability, and it raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss disability has been received after the final November 2013 decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1965 to May 1969, with later National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for bilateral hearing loss, and the appeal is granted to this extent only New and material evidence is required in order to reopen a claim that has been previously adjudicated in a final decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For Legacy claims to reopen decided prior to February 19, 2019, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court has emphasized that the threshold is low for purposes of reopening a claim. That is, reopening a claim does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim; rather, the newly presented evidence only needs to be probative with regard to each element that was a specified basis for the last disallowance. Evans v. Brown, 9 Vet. App. 273, 284 (1996). Stated another way, new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim. Shade, 24 Vet. App. at 120-22. In short, there is a low threshold for determining whether evidence is new and material. For the purpose of reopening a claim, the credibility, but not the weight, of newly submitted evidence is presumed, unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Mere offering of an alternative theory of entitlement for service connection does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). However, actual evidence offered in support of an alternative theory of entitlement (e.g., secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material. Boggs v. Peake, 520 F.3d 1330, 133637 (Fed. Cir 2008). In an earlier November 2011 rating decision, the AOJ denied service connection for bilateral hearing loss. The Veteran submitted an NOD in December 2011 and was provided with an SOC in November 2013. The Veteran was notified of his appellate rights, but he did not submit a VA Form 9 to perfect the appeal within the applicable appellate period. Therefore, the November 2013 decision became final for the bilateral hearing loss issue. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103. The AOJ denied service connection for bilateral hearing loss in a November 2011 rating decision. In the final November 2013 SOC, the AOJ continued the denial of service connection for bilateral hearing loss. The AOJ determined that the Veteran's service treatment records (STRs) do not show bilateral hearing loss for VA purposes and his bilateral hearing loss was attributed to his reported post-service civilian occupational noise exposure. In September 2017, the Veteran filed a claim to reopen his claim for service connection for bilateral hearing loss, which the AOJ denied in a December 2017 rating decision. The Veteran submitted an NOD in May 2018. The June 2018 SOC also addressed the merits of the claim but continued the denial, noting that the evidence the Veteran submitted was not new and material. The Veteran filed his VA Form 9 substantive appeal in August 2018. Regardless of the AOJ's June 2018 decision, the Board must make its own determination, as this in turn establishes the Board's jurisdiction to reach the underlying claim and to adjudicate it 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), aff'g, 8 Vet. App. 1 (1995)). On this basis and looking to the November 2013 final decision, the record now contains a VA medical opinion suggesting that the Veteran's left ear hearing loss may have pre-existed his military service. Additionally, the Veteran submitted lay statements providing more details about his in-service noise exposure as well as his post-service civilian occupation, specifically with regard to the extent and circumstances of the noise exposure experienced. See August 2018 VA Form 9. The Board finds that this evidence was not of record at the time of the November 2013 decision denying the claim and is therefore new. Moreover, it is material, as it provides findings possibly supporting the Veteran's assertions and presents a reasonable possibility of substantiating the claim. The evidence is not cumulative or redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran's claim will turn. For these reasons, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends that his bilateral hearing loss and tinnitus disabilities are related to or aggravated by his military service and not due to his post-service civilian occupation. See August 2018 VA Form 9. Regarding a current disability, the November 2017 VA examiner confirmed the Veteran's diagnosis of bilateral hearing loss. There is evidence of a current hearing loss disability. Regarding an in-service occurrence, the Veteran's military occupational specialties (MOS) are listed as Radioman/Radio Operator. See DD 214. VA has acknowledged that the Veteran's MOS of Radioman/Radio Operator during his active service in the U.S. Navy has a moderate probability of noise exposure. Thus, there is evidence of in-service noise exposure. In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court previously noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board observes that the Veteran's June 1965 entrance audiogram showed his pure tone thresholds were: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right -5 -10 -5 -10 -10 -5 Left 10 10 15 10 10 30 The Board observes that VA assumes that hearing tests conducted prior to January 1, 1967 were conducted using the American Standards Association (ASA) units rather than under the currently utilized International Standards Organization - American National Standards Institute (ISO-ANSI) units. Between January 1, 1967 and December 31, 1970, VA will consider the data under both ASA and ISO-ANSI standards. Where necessary to facilitate data comparison for VA purposes between the two standards, VA has determined that it is appropriate to convert ASA measurements to ISO-ANSI measurements. In light of the above, and where necessary to facilitate data comparison for VA purposes, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standards by adding 15, 10, 10, 10, 5, and 10 decibels at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Because the Veteran's June 1965 entrance examination was conducted prior to January 1, 1967, the VA will assume ASA units were used. As previously discussed, the VA currently uses ISO-ANSI units for the purposes of determining hearing loss. As such, the converted units are provided below: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 10 0 5 0 -5 5 Left 25 20 25 20 15 40 Although the June 1965 audiometric findings are not sufficient to show impaired hearing under 38 C.F.R. § 3.385, the Board finds the left ear findings of 25 decibel loss at 500 Hertz and 2000 Hertz and 40 decibel loss at 6000 Hz was at least higher than the threshold for normal hearing and as such, finds the Veteran was noted with a mild preexisting left ear hearing loss disability at the time of entry into service. The Veteran's May 1969 separation examination did not contain audiometric results but contained a 15/15 Whisper test. Here, the Board notes that the "Whisper Test" is not very reliable, and those results do not assist in determining the extent of change in the Veteran's hearing loss levels during his service. See Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009) (quoting a VA examiner's statement that, although Mr. Fagan did not exhibit signs of hearing loss during the whisper' test at discharge from the military, a "whisper test does not provide frequency or ear specific information and therefore does not rule out, or confirm, high frequency hearing loss"). The Veteran was afforded VA examinations in October 2011, September 2013, and November 2017. The October 2011 examiner provided that she was unable to provide a medical opinion without resorting to speculation but noted the Veteran's post-service occupational noise exposure. The Board finds this opinion inadequate for rating purposes because the examiner did not provide a complete opinion or rationale, she did not consider the Veteran's MOS or his contentions, and she did not consider the ISO-ANSI converted units when providing this opinion. The September 2013 examiner provided a negative nexus opinion with the rationale that the Veteran had an extensive history of civilian occupational noise exposure. The examiner further notes that the Veteran's hearing loss did not exist prior to service. The examiner noted that the Veteran did not report tinnitus. The Board finds this opinion inadequate for rating purposes because the examiner noted no pre-existing hearing loss, although the aforementioned ISO-ANSI unit conversion indicates otherwise. The November 2017 VA examiner provided a negative nexus opinion with the rationale that the Veteran's hearing loss was first noticed in 1980 and he had over 40 years of post-service occupational noise exposure. The examiner further noted that the Veteran's left ear hearing loss preexisted his military service, but he cannot speculate about aggravation due to the fact that hearing was not tested at separation as there was only a Whisper Test. However, the examiner also notes the Veteran's post-service civilian occupational noise exposure and provided that the Veteran's tinnitus is related to his bilateral hearing loss diagnosis. The Board observes that for an opinion to be adequate, it must include consideration of the Veteran's statements, be based on factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the November 2017 VA examiner failed to provide an adequate and complete rationale to support his opinion. In providing this opinion, the examiner relies, in part, on the lack of reliable audiological testing upon the Veteran's separation from service. The examiner also relies on the Veteran's December 2010 Application for Compensation and/or Pension where he listed that his hearing loss disability began on 1/1/1980. There is no indication that the examiner elicited from the Veteran information regarding the onset of his hearing loss, or when the Veteran noticed a difficulty hearing. The Veteran provided a statement in his August 2018 VA Form 9 with additional details about his MOS duties as well as his duties in his post-service civilian occupation. Specifically, the Veteran notes the various noise hazards that he was subjected to during his military service for long periods of time. Additionally, he concedes his post-service occupational noise exposure, but asserts use of ear protection that he was not provided during his military service. See August 2018 VA Form 9. Based on the foregoing, the Board finds that a remand is necessary to obtain an addendum medical opinion which properly addresses the issue of whether the Veteran's preexisting left ear hearing loss disability underwent an increase in severity during service and if so, if the preexisting left ear hearing loss disability was clearly and unmistakably not aggravated by service. The addendum medical opinion must also address whether the Veteran's right ear is related to his MOS and his contentions of nonuse of hearing protection during in-service noise exposure and the use of hearing protection during his post-service noise exposure. Regarding the Veteran's tinnitus disability, because the November 2017 VA examiner's opinion associates the Veteran's tinnitus disability with his hearing loss disability, tinnitus is inextricably intertwined with the hearing loss claim, and adjudication of the claim for tinnitus must be remanded as well. The Board observes the Veteran contended that his hearing loss disability was first noticed/treated in 1980 and he was treated at FHP Health Center at that time. See December 2010 Veteran's Application for Compensation and/or Pension. The AOJ provided the Veteran with a Veteran Claims Assistance Act (VCAA) letter in February 2011 requesting an Authorization and Consent to Release Information for these records. The Veteran did not return the form. On remand, the Veteran should again be asked to submit or request that VA obtain all outstanding private treatment records. Finally, the Board observes that the Veteran has indicated that he served in the National Guard from 1980 to 1982. See September 2017 Application for Disability Compensation and Related Compensation Benefits. On remand, the AOJ should make attempts to obtain these records. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-4124 (Authorization to Disclose Information to VA) to obtain records from private providers, specifically to include FHP Health Center in or around 1980. After securing any necessary releases, VA should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain the Veteran's complete service personnel records from all sources possible, including but not limited to the Defense Finance and Accounting Service (DFAS) and the Defense Personnel Records Information Retrieval System (DPRIS), to include all documents pertaining to his claimed service in the National Guard. Verify all ACDUTRA and INACDUTRA dates for service in the National Guard. 3. Following the above development, obtain an addendum opinion from a VA examiner of appropriate expertise to ascertain the etiology of the Veteran's current bilateral hearing loss and tinnitus disabilities. (If it is determined that additional examination is needed, it should be scheduled in accordance with applicable procedures.) The claims file should be made available to and be reviewed by the examiner. The examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's current bilateral hearing loss disability and/or tinnitus disability had its onset during the Veteran's military service (or if verified in the above development, due to a period of ACDUTRA and/or INACDUTRA during National Guard duty). This should include whether the type of hearing loss now shown is consistent with the conceded in-service noise exposure, advancing age, infection, some other cause, or the Veteran's post-service occupational noise exposure. (b.) For the Veteran's left ear hearing loss disability, the examiner should provide whether it clearly and unmistakably preexisted the Veteran's military service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. The examiner should note the below conversion of the June 1965 audiogram from ASA to ISO-ANSI units: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 10 0 5 0 -5 5 Left 25 20 25 20 15 40 (c.) The examiner should provide a detailed rationale for each opinion offered, including a discussion of the evidence of record and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. (Continued on the next page) (d.) It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. Specifically, with regard to his contentions that he was not provided hearing protection during his military service noise exposure, but he was provided with protection during his post-service occupational noise exposure. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.