Citation Nr: 21006464 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 20-05 793 DATE: February 4, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. An April 2015 rating decision denied service connection for bilateral hearing loss and tinnitus. The Veteran did not perfect an appeal of those issues. 2. Evidence received since the April 2015 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW New and material evidence has been received to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus. 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 March 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A Board hearing was held in December 2020 via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period 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). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus An April 2015 rating decision denied service connection for bilateral hearing loss and tinnitus as the claimed disabilities are not medically linked to service and there is no evidence that disabling sensorineural hearing loss manifested to a compensable degree within a year of service. The Veteran did not appeal the decision. As no new and material evidence was received by VA within one year of written notice to the Veteran, the April 2015 decision is final. 38 C.F.R. § 3.156(b). New evidence after the April 2015 decision includes VA examination and treatment records, private clinical documentation, the transcript of a December 2020 Board hearing, and written statements from the Veteran. The Board finds that evidence to be of such significance that it raises a reasonable possibility of substantiating the claims for service connection for bilateral hearing loss and tinnitus when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that the Veteran has bilateral hearing loss and tinnitus and suggests that the disabilities are related to active service. As new and material evidence has been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus is reopened. The issues of entitlement to service connection for bilateral hearing loss and tinnitus will be addressed by Remand. 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 asserts that he has bilateral hearing loss and tinnitus due to active duty service. The Veteran has stated that while on active duty, he was exposed to noise from jet engines. The service personnel records show that the Veteran served as a Jet Aircraft Mechanic. Therefore, the Board finds that the Veteran was likely exposed to loud noises from aircraft while on active duty. Post-service treatment records and April 2015 and July 2018 VA examination reports show current diagnoses of bilateral sensorineural hearing loss and tinnitus. On VA examination of July 2018, the examiner found that it was less likely than not that bilateral hearing loss was caused by or a result of an event in service. The examiner stated that hearing tests conducted at enlistment and separation did not show a significant shift in hearing thresholds in service. Therefore, the examiner concluded that it was unlikely the veteran had a hearing injury during service. Additionally, the July 2018 examiner found that tinnitus was less likely than not caused by or a result of an event in service. The examiner concluded that because there was no hearing loss or hearing injury in service, delayed onset of hearing loss and tinnitus due to noise exposure was unlikely. In the absence of an objectively verifiable noise injury, the examiner stated that an association between claimed tinnitus and noise exposure cannot be assumed to exist. The Board appreciates the efforts made by the VA examiner. However, as the July 2018 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion, the opinion is not adequate. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. A lack of medical evidence in-service treatment records does not preclude service connection. Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). On private examination of September 2018, the audiologist concluded that “it would be more likely than not” that the Veteran’s hearing loss was due to the significant history of hazardous noise exposure while in service. However, the examination did not include a review of the Veteran’s claims file. Because the examiner was not fully informed of the pertinent facts and medical history of the case, the Board finds the examination to be incomplete. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Remand is necessary for an adequate etiology opinion regarding the demonstrated bilateral hearing loss and tinnitus. VA attention has been directed to a sponsored Institute of Medicine (IOM) report on delayed onset hearing loss. While the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs, that statement does not indicate the full extent of the report's findings pertinent to the matter. Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005. Therefore, the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain all pertinent VA and private medical records not yet associated with the record. 2. Schedule the Veteran for a VA audiology examination with an examiner who has not previously examined the Veteran, to obtain an opinion on the etiology of bilateral hearing loss and tinnitus. Following a review of the record, to include the Veteran's lay statements concerning in-service noise exposure, hearing loss symptoms, tinnitus, the IOM report, and the FAA report concerning an individual's delayed awareness of the effects on hearing from noise, and the onset of current symptomatology, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss or tinnitus had its onset during, or is otherwise related to service, to include established in-service noise exposure. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. The examiner should also discuss the medical research conducted by Dr. Sharon Kujawa in providing the opinion. The examiner must consider the Veteran's lay statements regarding symptoms of hearing loss and tinnitus during and after service. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.