Citation Nr: 21010786 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-21 368 DATE: February 25, 2021 ORDER The petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. The petition to reopen a claim of entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT A November 2011 rating decision last denied service connection for bilateral hearing loss and tinnitus; evidence pertaining to the Veteran’s bilateral hearing loss and tinnitus since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claims, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The November 2011 rating decision which denied the Veteran’s claims for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the last final November 2011 rating decision is new and material, and the claims for service connection for bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1972 to January 1975. The Veteran testified before the undersigned Veterans Law Judge in March 2020. A copy of the transcript is of record. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 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. At the time of the last final denial of the Veteran’s claims for service connection for bilateral hearing loss and tinnitus in November 2011, evidence of record included service treatment records, private treatment records, and VA examinations. Evidence associated with the claims file since the previous November 2011 denial includes statements and testimony reflecting continued issues with the Veteran’s hearing loss and tinnitus. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for bilateral hearing loss and tinnitus are reopened. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of in-service noise exposure. The Veteran’s contentions regarding noise exposure are supported by the information contained in his personnel records. The Board will concede in-service noise exposure. The auditory threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies 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. It is not necessary to meet these criteria for a hearing loss disability during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The record shows that the Veteran has a current bilateral hearing loss disability for VA purposes. Thus, the element of a current disability has been satisfied. Additionally, as noted above, based on the Veteran’s credible assertions regarding noise exposure in service, in-service acoustic trauma is conceded. The Board finds that the Veteran had elevated hearing thresholds in his right ear at entrance to service, but they did not meet the levels needed to satisfy the definition of a hearing loss disability for VA purposes. 38 C.F.R. §§ 3.385, 4.85. Moreover, it was specifically noted on the entrance examination that the Veteran did not have any disqualifying defects. As such, the Board will proceed with the notion that the Veteran had normal hearing at service entrance. Post-service treatment records show complaints of, and treatment for, hearing loss and tinnitus. The record includes a speculative positive May 2011 private opinion. This speculative opinion is not adequate for adjudication purposes. Additionally, of record are January 2008 and August 2011 VA opinions. The January 2008 VA examiner appears to base his negative opinions on the fact that the Veteran denied any trouble hearing or tinnitus prior to 2002. This is in contradiction to his recent March 2020 BVA hearing testimony. Additionally, the August 2011 VA examiner noted on the report that the Veteran’s hearing loss preexisted service. As noted above, the Board has determined that the Veteran was sound on entry. A direct etiological opinion regarding tinnitus was not provided. Due to the inadequacies of all the examinations of record, the Board finds that additional VA opinions are needed to adjudicate the Veteran’s claims. 5. Entitlement to service connection for a lumbar spine disability. The Veteran testified at his March 2020 BVA hearing that he has suffered from back pain since service. He asserts that his back pain was caused by his military occupational specialty (MOS) in service, which involved carrying heavy equipment, and that he self-treated his back pain. Based on the credible statements and testimony submitted by the Veteran regarding his longstanding back disability and his allegations of continuity of symptomatology since service, the Board finds that a remand for a VA examination and opinion regarding the claim of service connection is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the AOJ should also obtain and associate with the claims file all outstanding treatment records. The matters are REMANDED for the following actions: 1. After obtaining the appropriate release from the Veteran, obtain any outstanding private treatment records. 2. Obtain addendum opinions from a qualified examiner. An examination is not required unless deemed so by the examiner. The examiner must provide well-reasoned opinions on: Whether it is at least as likely as not (a probability of 50 percent or greater) that any bilateral hearing loss disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include in-service noise exposure. Whether it is at least as likely as not (a probability of 50 percent or greater) that any tinnitus disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include in-service noise exposure. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of back disability found to be present and its relationship, if any, to his military service. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The VA examiner is asked to address the following questions: Whether it is at least as likely as not (a probability of 50 percent or greater) that any back disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service. Any opinion(s) offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinion without resort to speculation, he or she must so indicate and must provide an explanation as to why such a finding is made. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.