Citation Nr: 21077063 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-30 633 DATE: December 28, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for an eye disorder, to include as secondary to service-connected traumatic brain injury (TBI) is remanded. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected TBI, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected TBI, is remanded. FINDINGS OF FACT 1. An unappealed March 2010 rating decision denied entitlement to service connection for bilateral hearing loss. 2. The evidence added to the record since the March 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The March 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 14, 1991 to April 19, 1991, September 16, 1991 to December 18, 1991, October 30, 1993 to February 27, 1994, and from September 2001 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 1. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the AOJ, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A March 2010 rating decision denied the Veteran's claim for service connection for bilateral hearing loss as there was no evidence that this condition was related to his active service. The Veteran was notified of this decision and of his appellate rights by letter dated March 22, 2010. He did not appeal. Therefore, the March 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence of record received subsequent to the March 2010 rating decision consists of the Veteran's testimony and post-service medical records. This evidence is both new and material to the extent that they suggest the Veteran's bilateral hearing loss could be related to his active duty service or as secondary to his service-connected TBI. The additional evidence is therefore so significant that it must be considered in order to fairly decide the merits of the claim. As such, the Board finds that the evidence submitted since the last final denial of the claims meets the new and material evidence standard, and thus the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. 2. Entitlement to service connection for an eye disorder, as secondary to service-connected TBI is remanded. 3. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected TBI, is remanded. 4. Entitlement to service connection for obstructive sleep apnea is remanded. Initially, the Board notes that the April 2014 rating decision and April 2017 statement of the case reference February 2014 VA examination reports which are not presently associated with the Veteran's claims file. In this regard, the Veteran underwent several examinations on February 28, 2014, which were completed by outside vendors. However, these contract medical examinations have not been associated with the Veteran's claims file. At the July 2021 Board hearing, the Veteran testified that he experienced neck pain and sleep issues since his last period of active duty service. See July 2021 Hearing Transcript (stating his neck began hurting after his second exposure to an improvised explosive device). He also testified that his medical provider had informed him that his bilateral hearing loss was either due to his active duty service or service-connected TBI, and that his eye disorder was due to his TBI. Id. Accordingly, the Board finds a remand is required to provide the Veteran with appropriate VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain copies of the February 28, 2014 VA examination reports performed by outside vendors and associate them with the claims file. 2. Make arrangements to obtain the Veteran's updated VA treatment records, from February 2014, forward. 3. Thereafter, schedule the Veteran for appropriate VA examinations to address the nature and etiology of his neck disorder, eye disorder, bilateral hearing loss, and obstructive sleep apnea. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner(s) in conjunction with the examination(s). The examiner(s) should confirm in the examination report(s) that he or she has reviewed the folder in conjunction with the examination. The examiner(s) should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner(s) must respond to the following: Neck Disorder a. Identify (by diagnosis) each neck disorder currently found to be present, to include any cervical neuropathy. b. For each neck disorder found, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it had its clinical onset during active service or is related to any other incident of service, to include direct exposure to multiple explosions. The examiner must provide a complete rationale for any opinion offered. Eye Disorder a. Identify (by diagnosis) each eye disorder found to be present, to include myopic astigmatism with presbyopia, vertical misalignment, and divergence insufficiency. b. For each eye disorder found, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) (1) caused by, or (2) aggravated by, his service-connected TBI. The examiner must provide a complete rationale for all opinions provided. Bilateral Hearing Loss a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its clinical onset during active service or is related to any other incident of service, to include direct exposure to multiple explosions. b. Provide an opinion as to whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent or greater probability) (1) caused by, or (2) aggravated by, his service-connected TBI. The examiner must provide a complete rationale for any opinion offered. Obstructive Sleep Apnea a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea had its clinical onset during active service or is related to any other incident of service, to include direct exposure to multiple explosions. b. Provide an opinion as to whether the Veteran's obstructive sleep apnea is at least as likely as not (50 percent or greater probability) (1) caused by, or (2) aggravated by, his service-connected TBI or PTSD. The examiner must provide a complete rationale for any opinion offered. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.