Citation Nr: 21028338 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-11 972 DATE: May 11, 2021 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. REMANDED An initial compensable rating prior to April 18, 2016, and a rating higher than 10 percent for radiation proctitis is remanded. FINDINGS OF FACT 1. By a final November 1991 rating decision, the Veteran's claim for service connection for bilateral hearing loss was denied. Evidence received since then raises a reasonable possibility of substantiating the claim for service connection. 2. The Veteran has experienced decreased hearing related to bilateral hearing loss since his separation from service. CONCLUSIONS OF LAW 1. The November 1991 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening a previously denied claim of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from January 1969 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a virtual hearing before the undersigned in April 2021. New and Material Evidence Service connection for bilateral hearing loss was denied in a November 1991 rating decision. The Veteran did not appeal the issue of bilateral hearing loss, and new and material evidence was not submitted within the appeal period. Accordingly, the November 1991 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by the VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO previously denied the Veteran's claim for service-connection for bilateral hearing loss due to the Veteran not having hearing loss for VA purposes. The Veteran now has hearing loss for VA purposes. The Board finds that this new evidence is not cumulative or redundant of the evidence previously of records, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For VA purposes, impaired hearing is considered disabling when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Veteran contends that his hearing loss is due to in-service noise exposure. For the following reasons, the Board agrees. Audiometric testing shows that the Veteran has hearing loss for VA purposes. The Veteran testified that he was exposed to hazardous noise during his service as an aircraft technician. He submitted a statement from a fellow servicemember that supports exposure to hazardous noise. The Board finds this to satisfy the first two elements for service connection. Regarding the third element, medical nexus, the evidence consists of an August 2015 VA examination, the Veteran's testimony, and an opinion from a private physician. The examiner opined that the Veteran's hearing loss was not due to in-service noise exposure. The rationale was because the Veteran did not have hearing loss for VA purposes at the time of separation. The Board has assigned less weight the VA examiner's August 2015 opinion. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (Even though there is no hearing loss disability shown at separation from service, service connection may nevertheless be established by showing that any present hearing loss is related to service). In contrast, the Veteran has provided competent and credible testimony regarding the continuity of his hearing loss and an opinion from a private physician. The physician opined that Veteran's hearing loss was caused in part by Veteran exposure to hazardous noise in service. They based their opinion on the Veteran wearing hearing aids and he had some high frequency hearing loss upon separation. The Veteran also testified that he noticed trouble hearing during service and that his hearing had declined since service. The Board finds the evidence to be in relative equipoise. Accordingly, service connection for hearing loss based on continuity of symptomatology is granted. 38 C.F.R. § 3.303(b). REASONS FOR REMAND Radiation Proctitis At an April 2021 hearing, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. At his April 2021 hearing, the Veteran also asserted that is radiation proctitis has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his radiation proctitis. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for UC Davis Health, Sutter Health, Dr. T, and any other private providers. Make two requests for the authorized records from UC Davis Health and any other private providers unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected radiation proctitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.