Citation Nr: 21031836 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-05 463A DATE: May 24, 2021 ORDER The claim for entitlement to service connection for right ear hearing loss is reopened. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. A February 2015 rating decision denied the claim for service connection for right ear hearing loss. The Veteran did not appeal that decision, and new and material evidence was not submitted within the appeal period. 2. Evidence added to the record since the February 2015 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right ear hearing loss. CONCLUSIONS OF LAW 1. The February 2015 decision denying service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim for service connection for right ear hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from February 1965 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In addition to the current issue on appeal, the Veteran also timely appealed the issue of service connection for back strain. In a January 2017 rating decision, the RO granted service connection for lumbosacral strain with spinal stenosis, effective April 12, 2016. Because the Veteran was granted service connection for his claimed disability and he has not disagreed with the effective date or disability rating, the issue of service connection for back strain is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran provided testimony in April 2021 before the undersigned. A copy of the transcript is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Requests to Reopen Previously Denied Claims for Service Connection Generally, a claim that has been denied in an unappealed RO 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(a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). 1. The claim for entitlement to service connection for right ear hearing loss is reopened. The Veteran contends that he was exposed to loud noises as an aircraft hydraulic specialist during service which resulted in his right ear hearing loss. The Veteran's claim for service connection for right ear hearing loss was initially denied in a February 2015 rating decision. The RO determined that there were no audiometric findings of hearing loss for VA purposes in service treatment records nor a medical link between the claimed right ear hearing loss and service. At the time of that decision, the evidence of record included service treatment records, VA treatment records, and a VA audiological examination with no nexus opinion. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In support of his claim to reopen, a June 2016 VA audiological examination was administered and reflected a current diagnosis of right ear hearing loss, for VA purposes, and a January 2017 negative nexus opinion. In his April 2021 Board hearing, the Veteran reported that he first noticed hearing loss in his right ear around 1977/1978 upon a mandatory hearing test for his squadron and was told he had decreased hearing. He also indicated that he reported his decreased hearing in his right ear at such time. This constitutes new and material evidence presenting a reasonable possibility of substantiating the claims on the merits. Hence, reopening of the claim for service connection for right ear hearing loss is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran seeks service connection for right ear hearing loss. The Veteran currently has right ear hearing loss, for VA purposes. See February 2015 and June 2016 VA examinations. As indicated above, the Veteran was afforded a June 2016 VA examination and January 2017 nexus opinion was obtained. The examination reflected right ear sensorineural hearing loss and a speech discrimination score of 86 percent. The examiner provided a negative nexus opinion and indicated that there were no significant changes in hearing thresholds in the right ear during active service, and that based on anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occurred. The examiner cited to medical literature in support of this conclusion. The Board finds the January 2017 opinion is inadequate because the examiner relied, in part, on documented whisper voice testing throughout service records, including upon on enlistment and periodic examinations, all reflecting normal hearing. The Board finds that the examiner's reliance on these tests render the opinion insufficient. As a whisper test does not demonstrate pure tone thresholds or test at higher frequencies, the examiner failed to explain why the whisper test results were deemed a valid determination of hearing acuity for this veteran. Furthermore, the Board notes that the absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155 (1993) (setting out the requirements for establishing service connection for hearing loss). Furthermore, in his May 1987 Report of Medical History, the Veteran reported high frequency hearing loss, greater in the left ear than the right, which could be interpreted as consistent with Veteran's most recent statements of having reported a decrease in hearing in his right ear during service. As such, an addendum opinion is warranted to determine the nature and etiology of the Veteran's claimed right ear hearing loss, to include the Veteran's most recent lay statements and delayed onset of right ear hearing loss. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the January 2017 examiner, or another appropriate clinician, to determine the nature and etiology of the Veteran's right hearing loss. The clinician providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ear hearing loss disability was caused or aggravated by his active service, including noise exposure therein. The examiner must discuss the Veteran's lay assertions as to onset of his right ear hearing loss, and the validity, if any, of the whisper test to determine hearing ability or changes in hearing threshold. The examiner should also note normal hearing tests during service do not foreclose the possibility of a causal link between post-service hearing loss and an in-service injury. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner must provide a rationale in support of all opinions provided. If the examiner cannot provide the opinion without conducting an examination of the Veteran, then an examination must be scheduled. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.