Citation Nr: 21032032 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-30 445 DATE: May 25, 2021 ORDER New and material evidence not having been received, the application to reopen a claim for service connection for a bilateral ear condition is denied. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Veteran's initial claim of service connection for a bilateral ear condition was denied in a September 2011 rating decision because there was no evidence of a diagnosed condition. As she did not appeal that decision and no new and material evidence was submitted within one year, the September 2011 decision is final. 2. Evidence added to the record since the September 2011 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran's service connection claim recharacterized as bilateral hearing loss and does not raise a reasonable possibility of substantiating that claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral ear condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 2005 to February 2010. In April 2019, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with the claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral ear condition The Veteran seeks to reopen a claim of entitlement to service connection for a bilateral ear condition. The Board finds that the Veteran has not submitted new and material evidence to reopen the previously denied claim. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously submitted to VA. Material evidence is 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 cannot be cumulative or 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). At the outset the Board notes that there are specific requirements to establish service connection for hearing loss. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). By way of procedural history, the Veteran's initial service connection claim, characterized as a bilateral ear condition, was denied by a September 2011 rating decision, finding that the Veteran did not have any current ear or hearing condition. The Veteran did not submit new and material evidence or file a Notice of Disagreement within one year of the decision; the rating decision became final. 38 U.S.C. § 7105. The Veteran requested that the claim be reopened in October 2014, recharacterizing the issue as service connection for bilateral hearing loss. In March 2015, a rating decision was issued which determined that new and material evidence was not received to reopen the claim, specifically due to a continued lack of evidence of a persistent disability during service and current disability. The Veteran timely appealed this rating decision and the issue subsequently was appealed to the Board. In an April 2019 decision, the Board remanded the claim but did not reopen it so the AOJ could issue a Supplemental Statement of the Case (SSOC). After careful review of the record, the Board finds that new and material evidence has not been submitted to reopen the claim at issue. While the Veteran underwent a VA examination for hearing loss in January 2016, the objective testing results did not demonstrate levels of hearing impairment that meet the requirements for a VA disability. Furthermore, the Veteran has not submitted, and the record does not otherwise reflect, any other evidence of a current bilateral hearing loss or other ear disability that meets the criteria for a VA disability received since the prior final decision. 38 C.F.R. § 3.156(a). Therefore, the records added to the claims file subsequent to the prior final decision are not material and thus cannot serve as new and material evidence within the meaning of applicable regulations. REASONS FOR REMAND Entitlement to service connection for residuals of a TBI is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's previous remand directed that the Veteran be scheduled for the appropriate VA examination for his claimed head trauma/TBI residuals. Additionally, the Board identified specific records that the examiner should discuss. In January 2020, a VA medical opinion was issued, however, it does not appear that the Veteran was actually provided an in-person examination. Additionally, it is unclear if the opinion offered adequately considered the specific records identified in the Board's prior remand. Therefore, further remand is necessary. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for her claimed TBI/head trauma residuals. The examiner must review the claims file and identify all diagnoseable head trauma residuals, to include TBI and associated residuals. Are any diagnosable head trauma/TBI residuals at least as likely as not related to active duty service? The examiner must address a January 2016 VA Preventative Medicine Risk Assessment noting a positive TBI screen; and a February 2016 VA TBI Consult noting an assessment of more than five concussions during the Veteran's lifetime during and following her service. The examiner must also address the Veteran's relevant lay statements of record, to include a February 2016 VA TBI Consult, which documented her report that she was roughed up by other servicemembers during her first deployment, which led to her being knocked out between four and five times; and was near an improvised explosive device blast in 2005, as a result of which she lost consciousness Provide a rationale to support the opinion. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.