Citation Nr: 21077345 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-42 654 DATE: December 29, 2021 ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a back disability is reopened and, to that extent only, the appeal is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The claim for service connection for a back disability was previously denied by the Department of Veterans Affairs (VA) Regional Office (RO)/Agency of Original Jurisdiction (AOJ) in a September 2003 decision. The Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed the notice of the determination to the Veteran. 2. New evidence received since the time of the final September 2003 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for a back disability. 3. The Veteran's tinnitus onset in service. CONCLUSIONS OF LAW 1. The September 2003 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for a back disability is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for a back disability The RO denied service connection for a back disability in a September 2003 rating decision. The Veteran has filed to reopen that claim. The Board of Veterans' Appeals (Board) is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to VA. 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 determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the record when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). The Veteran did not file a timely notice of disagreement with the September 2003 rating decision denying service connection for a back disability and no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the September 2003 decision. Therefore, the September 2003 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The basis of the prior final denial was the RO's finding that the evidence did not show a chronic back disability in service or to a compensable degree during the Veteran's first year after discharge from service or that he has a current back disability related to his military service. Evidence added to the record includes the Veteran's July 2021 Board testimony as to the circumstances surrounding his back injury in service and ongoing pain since service and an October 2021 letter by a private chiropractor opining that the Veteran's current disability of his thoracic spine and neck is related to his reported in-service injury. The Board thus finds that new and material evidence has been submitted to reopen the issue of service connection for a back disability since the September 2003 rating decision. On this basis, the issue of entitlement to service connection for a back disability is reopened. 2. Entitlement to service connection for tinnitus The Veteran contends his tinnitus onset in and was caused by his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran testified at his July 2021 Board hearing that the ringing in his ears started during service. He stated that he assumed at the time he was in service that the ringing would go away when he was no longer in an environment where he was being exposed to loud noise. He noted his exposure to loud weapons fire in service. The Board finds the Veteran competent and credible to report the onset and continuation of tinnitus since service. Therefore, the Board finds that giving the Veteran the benefit of the doubt, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Board finds that the following further development is required as to the issue of entitlement to service connection for hearing loss. In April 2017 the Veteran submitted a release form authorizing Kaiser Permanente to disclose information to the VA. The record does not reflect that the VA requested any medical records from Kaiser Permanente. As they may be relevant, all reasonable efforts should be made to obtain those private medical records. The Veteran underwent a VA audiology examination in May 2017. The examiner noted that the Veteran's military occupational specialty of anti-tank assault guided missileman has a high probability of hazardous noise exposure. However, the examiner opined that the Veteran's current hearing loss is less likely than not related to the Veteran's service and his entrance and separation hearing tests did not show a significant threshold shift in service and there is no record of complaint of hearing problems for more than 15 years after service. The examiner opined that the Veteran's mild hearing loss is consistent with natural progression and long history of non-military noise exposure in the trucking industry. The Board notes that the United States Court of Appeals for Veterans Claims (Court), in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). At his July 2021 Board hearing, the Veteran testified that he recalled his hearing being muffled in service after exposure to loud noise. He stated that he did not have loud noise exposure in his post-service civilian job. The Board finds that a new VA opinion should be obtained that considers the Veteran's lay testimony and offers a complete rationale. 2. Entitlement to service connection for a back disability is remanded. As the AOJ did not reopen and thus did consider the merits of the Veteran's claim for service connection for a back disability, the claim should be returned to the AOJ for initial consideration. The matters are REMANDED for the following action: 1. Obtain private medical treatment records from Kaiser Permanente. 2. Obtain an addendum medical opinion addressing the likelihood of a relationship between the Veteran's bilateral hearing loss and his service. There is no need to schedule further examination of the Veteran, unless the reviewer concludes such is necessary. (Continued on the next page) Based on review of the record, the reviewer/examiner should render an opinion as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that the Veteran's bilateral hearing loss had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service, to include noise exposure, or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent). In so doing, the examiner should discuss causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.