Citation Nr: 21008505 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-32 880 DATE: February 17, 2021 ORDER As new and material evidence sufficient to reopen the claim for service connection for bilateral hearing loss has been received, the petition to reopen this claim is granted. As new and material evidence sufficient to reopen the claim for service connection for tinnitus has been received, the petition to reopen this claim 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. A November 2015 rating decision denied service connection for bilateral hearing loss and tinnitus. 2. Although the Veteran initiated an appeal of the November 2015 rating decision as to its denial of service connection for bilateral hearing loss, he did not perfect that appeal by filing a substantive appeal following the issuance of a January 2017 statement of the case; he also did not appeal the November 2015 rating decision as to its denial of service connection for tinnitus. 3. Evidence received since the November 2015 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The November 2015 rating decision that denied entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.202, 20.1103. 2. Evidence received since the November 2015 rating decision is new and material and serves to reopen the Veteran’s 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 in the U.S. Army from June 1953 to April 1955. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). At the hearing, the Veteran submitted additional lay statements from acquaintances that are considered herein. 1. Whether new and material evidence sufficient to reopen the claims for service connection for bilateral hearing loss and tinnitus has been received. A claim that has been denied in an unappealed rating decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of 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). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In November 2015, the RO denied service connection for bilateral hearing loss and tinnitus based essentially on findings that the Veteran’s bilateral hearing loss had not occurred in service and was not caused by service, and that tinnitus had not been clinically diagnosed. See November 2015 Rating Decision. The Veteran did not appeal the November 2015 rating decision as to the denial of entitlement of service connection for tinnitus, nor did he submit new and material evidence relating to tinnitus within one year of that decision; therefore, it is final. As for the denial of entitlement to service connection for bilateral hearing loss, although the Veteran initiated an appeal of that issue by filing a timely notice of disagreement in February 2016, he did not perfect his appeal by filing a substantive appeal following the issuance of a January 2017 statement of the case. Therefore, the November 2015 rating decision is also final as to the bilateral hearing loss claim. Evidence received subsequent to the November 2015 rating decision includes the Veteran’s February 2021 hearing testimony before the Board, wherein he indicated that his hearing loss started within a year of his separation from service. Additionally, at the February 2021 hearing, the Veteran reported having tinnitus (ringing in the ears) that began while he was working as a welder building ships after service. In light of the low threshold for establishing new and material evidence, and because statements are presumed credible for the purposes of reopening, the Board finds that this evidence relates to an unestablished fact necessary to substantiate the Veteran’s claims. More specifically, the evidence obtained since the last final denial bears directly on the nexus element for the hearing loss claim and indicates that the Veteran now has a current disability with regards to his tinnitus claim. As such, the Board finds that new and material has been presented with respect to both claims, and they are reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss and tinnitus are remanded. The RO denied the Veteran’s instant claims of service connection for bilateral hearing loss and tinnitus on the basis that new and material evidence had not been received to reopen the claims following a prior final denial. The Board’s decision above reopens the claims. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), it was held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the Veteran or no prejudice would result from adjudication of the claim. As the RO has not considered the Veteran's claims of service connection for bilateral hearing loss and tinnitus on their merits, and he has not waived his right to RO initial consideration, the Board finds that a remand for the RO to adjudicate the Veteran's claims in the first instance is necessary. Prior to the RO’s de novo review of the claims on appeal, however, additional development must be completed. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any bilateral hearing loss and tinnitus. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran has any bilateral hearing loss or tinnitus that had its onset in, within one year of his separation from, or is otherwise related to, his active duty service to include his noise exposure from his military occupational specialty (MOS) as a radio operator and a field worker. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a more complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.