Citation Nr: 21031500 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-06 062 DATE: May 24, 2021 ORDER The petition to reopen the previously denied claim for service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT An unappealed February 1996 rating decision denied entitlement to service connection for a bilateral hearing loss disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The February 1996 rating decision denying the claim for service connection for a bilateral hearing loss disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to April 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 60 days for the submission of additional evidence. Evidence was subsequently submitted by the Veteran's representative; additionally, a waiver of consideration by the agency of original jurisdiction in the first instance of any additional evidentiary submissions was received by the Board. See VA Form 21-4138 (January 2020). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. The Board concludes that the February 1996 rating decision denying the claim for service connection for a bilateral hearing loss disability is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A February 1996 rating decision denied service connection for a bilateral hearing loss disability because the evidence of record did not show that the Veteran's current disability was incurred in or related to service. VA notified the Veteran of this decision in a February 1996 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. In this regard, there is evidence reflecting that the Veteran's current bilateral hearing loss disability is related to in-service noise exposure. See Medical Treatment Record-Non-Government Facility (July 2017). This evidence was not previously considered by decision-makers and tends to support the Veteran's theory of entitlement. 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submission is considered new and material. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. Issues 1-2. The Veteran, and his representative, contends that his disabilities stem from in-service noise exposure. In this regard, the Veteran argues that although his military occupational specialty was as a yeoman in human resources, his other duties exposed him to loud acoustic trauma while in service, such as standing watch in the boiler room, doing ship repairs with sanders and grinders, using loud hydraulic equipment while refueling ships, being near helicopters landing on the ship, and exposure to small arms fire in training. For reasons explained below, the Board finds that remand is necessary. VA medical opinions, dated in November 2017 and December 2017, reflect the conclusions that the Veteran's bilateral hearing loss and tinnitus disabilities were less likely than not incurred in or caused by an in-service injury, event or illness. The Board finds the VA medical opinions inadequate for adjudicative purposes. First, the November 2017 medical opinion is inadequate because the examiner observed that the Veteran's bilateral hearing loss pre-existed entry into service. However, review of the Veteran's entrance examination does not show a hearing loss disability for VA purposes of either ear. As such, the Veteran should be presumed sound upon entry into service as to that disability. See McKinney v. McDonald, 28 Vet. App. 15, 21-24, 29 (2016) (hearing loss noted on examination that does not meet the requirements of 38 C.F.R. § 3.385 is not a defect, infirmity, or disorder for the purposes of application of the presumption of soundness). Second, while the December 2017 medical opinion notes that the Veteran's service treatment records (STRs) are silent for complaints or findings for hearing loss and tinnitus, it does not provide the Board a reasoned rationale connecting the lack of STRs documenting complaints/findings to the conclusion that the Veteran's current hearing loss disability or tinnitus is not at least as likely as not related to in-service injury or disease. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Indeed, much of the rationale reflects findings based on a lack of in-service evidence. For instance, the opinion noted that there is no record "of complaint, or treatment, of the claimed condition in the service records." The conclusion, however, is not supported by a reasoned medical rationale. Moreover, the absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection for a hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Further, the opinion does not reflect consideration of the pertinent evidence of record (e.g. the Veteran's documented relevant history and assertions, lay statements from his spouse and positive medical literature). Lastly, the opinion supports its conclusion with citation to a 2006 Institute of Medicine (IOM) study that found the most profound auditory effects of noise exposure occur immediately following exposure which suggests that hearing loss would have an onset during service or would be present at separation if caused by military noise exposure. It is noted that in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), in addressing an IOM study, the Court held that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." Here, the opinion does not acknowledge any contradictory aspects of the IOM report. Also, reliance on the absence of medical literature supporting nexus without discussing the specific facts of the Veteran renders an opinion inadequate. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Accordingly, given the above, the Board finds that remand is required to obtain adequate VA medical opinions in these matters. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board observes that the Veteran submitted private medical opinions in support of the claims. Specifically, private medical opinions, dated in July 2017 and in January 2020, reveal the conclusion that the Veteran's bilateral hearing loss disability is related to in-service noise exposure. The opinions, however, do not reveal that the clinicians opined on the Veteran's tinnitus. Indeed, the opinions' conclusions are limited to his hearing loss disability. Nevertheless, the Board has reviewed the private medical opinions and finds that they are inadequate to support the claims. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). In this case, the opinions are inadequate because they are not definitive and supported by detailed rationale when weighed against the negative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). For example, the July 2017 private medical opinion, in support of the conclusion, cites to the Veteran's reported history; the opinion, however, does not reveal a reasoned medical rationale connecting the reported history to the conclusion. The transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is VA or private. LeShore v. Brown, 8 Vet. App. 406 (1995). Next, the January 2020 private medical opinion, likewise, notes the Veteran's reported history and noise exposure; the opinion, however, is absent of a rationale connecting the Veteran's military noise exposure to his current hearing loss disability. Therefore, for these reasons, the Board finds the private medical opinions inadequate to support the claims. Nevertheless, given the above, the Board finds that remand is necessary for further development of the claims. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of his tinnitus and bilateral hearing loss, to include from Associated Coastal ENT Physicians PA. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from December 2017 to the Present. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's (1) bilateral hearing loss disability and (2) tinnitus. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should reflect consideration of the pertinent evidence of record (e.g. the Veteran's documented relevant history and assertions, lay statements from his spouse, and positive medical literature). The clinician is not required to accept the Veteran's theory that his military service caused his disabilities, or that he had symptoms associated with either disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. In rendering the below, consider and expressly address the Veteran's theory that his disability stems from acoustic trauma associated with his military duties (e.g. standing watch in the boiler room, doing ship repairs with sanders and grinders, using loud hydraulic equipment while refueling ships, being near helicopters landing on the ship, and exposure to small arms fire in training). The clinician must opine on: (a) Whether the Veteran's bilateral hearing loss disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Explain. (b) Whether the Veteran's tinnitus at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Explain. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.