Citation Nr: 21014295 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-33 053 DATE: March 11, 2021 ORDER As new and material evidence has been submitted regarding the claim for service connection for bilateral hearing loss, the Veteran’s claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for tinnitus, the Veteran’s claim is reopened. 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 bilateral eye or vision disability is remanded. FINDINGS OF FACT 1. By a March 2011 rating decision, the Veteran’s claim for service connection for bilateral hearing loss was denied on the basis that the Veteran did not meet the criteria for left ear hearing loss for VA purposes and there was no medical link between the Veteran’s right ear hearing loss and his service. 2. Evidence received since the March 2011 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. By a March 2011 rating decision, the Veteran’s claim for service connection for tinnitus was denied on the basis that the claims file contained a medical opinion finding that the Veteran’s tinnitus neither incurred in nor was caused by his active military service. 4. Evidence received since the March 2011 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The March 2011 rating decision denying the Veteran’s claims for service connection for bilateral hearing loss and tinnitus is final. See 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for bilateral hearing loss has been submitted. See 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2019). 3. New and material evidence sufficient to reopen the Veteran’s claim of service connection for tinnitus has been submitted. See 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1978. In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of this transcript is of record. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. With respect to the Veteran’s applications to reopen his previously denied claims for service connection for bilateral hearing loss and tinnitus, these applications, and only these applications, have been granted, as discussed below. As such, the Board finds that any error related to the duty to notify or the duty to assist solely with regard to these applications are moot. See 38 U.S.C. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2019); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran’s claims for service connection for bilateral hearing loss and tinnitus were previously denied in a March 2011 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 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) (2019). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). By a March 2011 rating decision, the Veteran’s claim for service connection for bilateral hearing loss was denied on the basis that the Veteran did not meet the criteria for left ear hearing loss for VA purposes and there was no medical link between the Veteran’s right ear hearing loss and his service. The Veteran’s claim for service connection for tinnitus was denied on the basis that the claims file contained a medical opinion finding that the Veteran’s tinnitus was neither incurred in nor caused by his active military service. At the time of this denial, service treatment records, VA examination reports, and statements from the Veteran were considered. The new evidence submitted since this denial consists primarily of hearing testimony, statements from the Veteran and private medical records. With regard to the newly submitted private medical evidence, the claims file contains a November 2020 private medical opinion, in which the physician determined that the Veteran’s sensorineural hearing loss and tinnitus were more likely than not caused/aggravated by an in-service event. As the newly submitted evidence suggests that the Veteran has hearing loss and tinnitus that are related to his service, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate these claims. As such, these claims are reopened. However, the Board cannot, at this point, adjudicate the reopened claims, as further development is necessary. This is detailed in the REMAND below. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. The Veteran is seeking service connection for bilateral hearing loss and tinnitus. Specifically, the Veteran asserts that he was exposed to noise while serving on a ship and working as a radio operator during service. A review of his service treatment records reveals no complaints, treatment, or diagnoses of tinnitus or bilateral hearing loss. The Veteran underwent a VA audiological examination in October 2010, at which he was diagnosed with hearing loss of the right ear only and bilateral subjective tinnitus. As the service treatment records were not available for review at that time, a VA addendum opinion was provided in February 2011. In the February 2011 addendum, the examiner concluded that it is less likely than not that the Veteran’s bilateral hearing loss and tinnitus are caused by or a result of military noise exposure. The examiner noted that the claims file review indicated normal hearing in both ears at enlistment in 1974 and at separation in 1978. The examiner noted that the Institute of Medicine, in a 2005 study on military and noise exposure, stated that there was no scientific evidence to support delayed onset of noise-induced hearing loss. Acoustic trauma in the military has been conceded. The Veteran reports noticing the tinnitus for the past 18 to 20 years with no event associated with the onset (around 1990 which would be about 12 years after the service.) In support of his claim, as noted above, the Veteran submitted a November 2020 private medical opinion, in which the physician determined that the Veteran’s sensorineural hearing loss and tinnitus were more likely than not caused/aggravated by an in-service event. Notably, the physician did not review the Veteran’s service treatment records. The Board finds that the November 2020 private opinion has little probative value, as it was not based on a review of the Veteran’s claim file, to include his service treatment records and prior VA examination. However, the February 2011 VA addendum opinion also has little probative value, as it appears to be largely based on a lack of in-service evidence of hearing loss. Lack of in-service evidence alone is not a sufficient rationale to support a negative opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As the such, the Board finds that a VA examination should be provided in order to determine the etiology of any diagnosed hearing loss or tinnitus. 2. Entitlement to service connection for a bilateral eye or vision disability is remanded. The Veteran is seeking service connection for a bilateral eye or vision disability. At his January 2021 hearing, the Veteran asserted that his private doctor informed him that the time he spent in service using a radar scope may have affected his vision. The Veteran asserted that his vision has worsened over the years. A review of his service treatment reveals changes in his visual acuity from his March 1974 Report of Medical Examination to his March 1978 Report of Medical Examination. The Board notes that for purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, anisometropia, hyperopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). In light of the Veteran’s assertion that his duties using a radar scope affected his vision, and, thus, could have resulted in a superimposed injury, the Board finds that a VA examination should be provided in order to determine the etiology of any bilateral eye or vision disabilities. Additionally, as the Veteran indicated at the January 2021 hearing that he had received private treatment, efforts should be made to obtain any outstanding, relevant private treatment records. The matters are REMANDED for the following action: 1. Send to the Veteran a letter requesting that he provide sufficient information and authorization to enable the Regional Office (RO) to obtain any outstanding, pertinent private medical records, particularly including for his eyes. Request all identified records. Associate any records received, including negative responses, with the claims file. 2. Schedule the Veteran for a VA examination for his claimed bilateral hearing loss and tinnitus. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should determine whether the Veteran has a diagnosis of hearing loss of either ear or tinnitus. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed hearing loss of either ear or tinnitus began during, or was caused by, his active duty service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 3. Schedule the Veteran for a VA examination for his claimed bilateral eye or vision disability. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all eye or vision disabilities. Then, the examiner should respond to the following: (a) Whether it is at least as likely as not that any diagnosed eye or vision disabilities began during, or were caused by, his active duty service; and (b) Whether any diagnosed eye or vision disabilities are congenital or developmental in nature; and, if so, whether the Veteran now has additional disability due to disease or injury superimposed upon such defect. In providing these opinions, the examiner should address the Veteran’s contentions about how use of a radar scope during his service affected his vision. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.