Citation Nr: 21015083 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 20-27 670 DATE: March 16, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. As new and material evidence has been received, the claim of entitlement to service connection for temporomandibular joint dysfunction is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a recurrent temporomandibular joint disability is remanded. FINDINGS OF FACT 1. In August 2015, the Agency of Original Jurisdiction reopened and denied service connection for bilateral hearing loss. The Veteran did not submit a timely notice of disagreement and the August 2015 rating decision is final. 2. The additional evidence received since the August 2015 rating decision that denied service connection for bilateral hearing loss is new and material. 3. In August 2015, the Agency of Original Jurisdiction denied service connection for temporomandibular joint dysfunction. The Veteran did not submit a timely notice of disagreement and the August 2015 rating decision is final. 4. The additional evidence received since the August 2015 rating decision that denied service connection for temporomandibular joint dysfunction is new and material. CONCLUSIONS OF LAW 1. The August 2015 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for bilateral hearing loss has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). 3. The August 2015 rating decision that denied service connection for temporomandibular joint dysfunction is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence to reopen the claim for service connection for temporomandibular joint dysfunction has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1962 to September 1966. Application to Reopen Claim of Service Connection 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. Prior to February 19, 2019, a claimant could 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). In regards to pending legacy claims not under the modernized review system, 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 agency of original jurisdiction by the Board of Veterans’ Appeals (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). Bilateral Hearing Loss In September 2010, the Agency of Original Jurisdiction denied service connection for bilateral hearing loss as “the medical evidence of record fails to show that this disability has been clinically diagnosed.” The Veteran was notified of the adverse decision and his appellate rights. He did not submit a notice of disagreement with the decision. The evidence considered in reaching the September 2010 rating decision included service medical records, service personnel records, and written statements from the Veteran. The service treatment records do not show a hearing loss disability for Department of Veterans Affairs (VA) purposes. New and material evidence pertaining to the issue of service connection for bilateral hearing loss was not received by VA or constructively in its possession within one year of written notice to the Veteran of the September 2010 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The Veteran subsequently sought to reopen the claim for service connection for bilateral hearing loss. In August 2015, the Agency of Original Jurisdiction determined that new and material evidence had been received to reopen the claim of service connection for bilateral hearing loss and denied the claim on the merits “because your hearing loss has not been linked to service.” The evidence considered by the Agency of Original Jurisdiction in formulating the August 2015 rating decision included VA examination records, private clinical documentation, and the Veteran’s written statements. The report of a July 2015 VA audiological examination, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 60 65 75 LEFT 20 25 70 65 75 Speech audiometry revealed bilateral speech recognition ability of 80 percent. The Veteran was diagnosed with bilateral sensorineural hearing loss. New and material evidence pertaining to the issue of service connection for bilateral hearing loss was not received by VA or constructively in its possession within one year of written notice to the Veteran of the August 2015 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the August 2015 rating decision includes VA examination and clinical records, private treatment records, and written statements from the Veteran. A June 2018 written statement from W. Bird, M.D., conveys that there is “evidence that he was hit with a cue ball on the left side of the his face over the TMJ area during his military service” and “since that time, he has had progressive hearing loss.” The doctor opined that “there is the possibility that it could be related.” The Board finds that the Dr. Bird’s written statement is of such significance that it raises a reasonable possibility of substantiating the claim for service connection. The documentation addresses the reason of the previous denial as it relates the diagnosed hearing loss disability to active service. As new and material evidence has been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Temporomandibular Joint Dysfunction In August 2015, the Agency of Original Jurisdiction denied service connection for temporomandibular joint dysfunction “since this condition neither occurred in nor was caused by service.” The Veteran was notified of the adverse decision and his appellate rights. He did not submit a notice of disagreement with the decision. The evidence considered in reaching the August 2015 rating decision included service medical records, service personnel records, VA examination records, private clinical documentation, and the Veteran’s written statements. The service treatment records relate that the Veteran was treated for a left jaw area trauma. A December 1965 treatment record states that the Veteran was hit with a cue ball on the left side of the face. The report of a July 2015 VA temporomandibular examination states that the Veteran was not diagnosed with a temporomandibular joint disability. New and material evidence pertaining to the issue of service connection for temporomandibular joint dysfunction was not received by VA or constructively in its possession within one year of written notice to the Veteran of the August 2015 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the August 2015 rating decision denying service connection for temporomandibular joint dysfunction includes VA examination and clinical records, private treatment records, and written statements from the Veteran. A September 2018 written statement from H. Goforth, D.D.S., states that the Veteran had “a significant malocclusion and has a history of trauma to his left mandible/temporomandibular joint.” The doctor opined that “I feel it is very possible the trauma (occurred December 1965) to the left mandible caused the malocclusion and associated joint problems the Veteran is now experiencing.” The Board finds that the Dr. Goforth’s written statement is of such significance that it raises a reasonable possibility of substantiating the claim for service connection. The documentation addresses the reason of the previous denial as it diagnoses the Veteran with a temporomandibular joint disability and relates the diagnosed the disability to active service. As new and material evidence has been received, the claim of entitlement to service connection for temporomandibular joint dysfunction is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that service connection for bilateral hearing loss is warranted as the claimed disability was manifested as the result of in service noise exposure or the documented in service left facial trauma associated with being struck by a cue ball. The June 2018 written statement from Dr. Bird conveys that there is “evidence that he was hit with a cue ball on the left side of the his face over the TMJ area during his military service” and “since that time, he has had progressive hearing loss.” The doctor opined that “there is the possibility that it could be related.” VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran has not been afforded a VA medical examination to determine the relationship, if any, between the in service facial trauma and the diagnosed bilateral sensorineural hearing loss. Clinical documentation dated after November 2018 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a recurrenttemporomandibular joint disability is remanded. The Veteran asserts that service connection for a recurrent temporomandibular joint disability is warranted as the claimed disability was manifested as the result of the documented in service facial trauma associated with being struck by a cue ball. The September 2018 written statement from Dr. Goforth states that the Veteran had “a significant malocclusion and has a history of trauma to his left mandible/temporomandibular joint.” The doctor opined that “I feel it is very possible the trauma (occurred December 1965) to the left mandible caused the malocclusion and associated joint problems the Veteran is now experiencing.” The report of a November 2018 VA temporomandibular examination states that no recurrent temporomandibular joint was identified. The examiner did not note of otherwise address Dr. Goforth’s opinion. Therefore, the Board finds that the examination is of limited probative value. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that further VA temporomandibular joint evaluation is necessary. These matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any hearing loss and temporomandibular joint disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including treatment records dated after November 2018. 3. Schedule the Veteran for a VA medical examination conducted by a physician to ascertain the relationship, if any, between the documented in service left facial trauma and the diagnosed sensorineural hearing loss disability. The examiner must review the record, including the June 2018 written statement from W. Bird, M.D., and should note that review in the report. The examiner should: (a) Identify all bilateral hearing loss disability found. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that diagnosed bilateral sensorineural hearing loss had its onset during active service or is otherwise related to active service, including the documented in service left facial trauma. All opinions rendered should be reconciled with the other opinions of record including that of Dr. Bird. 4. Schedule the Veteran for a VA temporomandibular joint examination conducted by a physician to determine the nature and etiology of the claimed recurrent temporomandibular joint disability. The examiner must review the record, including the September 2018 written statement from H. Goforth, D.D.S., and should note that review in the report. The examiner should: (a) Identify all recurrent temporomandibular joint disabilities found. If no temporomandibular joint disability is diagnosed, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that any identified temporomandibular joint disability had its onset during active service or is otherwise related to active service, including the documented in service left facial trauma. All opinions rendered should be reconciled with the other opinions of record including that of Dr. Goforth. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Willis, Associate 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.