Citation Nr: 21039798 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-12 958 DATE: July 1, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and to that extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a June 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral hearing loss; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the June 2013 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for reopening the previously denied claim for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1981 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of a VA Regional Office. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2021. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO originally denied the Veteran's claim for service connection for hearing loss in a June 2013 rating decision, finding insufficient evidence to establish a medical link between his diagnosed hearing loss and military service. The Veteran did not appeal the June 2013 rating decision or submit material evidence within one year of the notification of the decision. Therefore, the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.203, 20.1103. The Veteran filed a request to reopen his service connection claim for hearing loss, in November 2015. In the January 2016 rating decision on appeal, the RO reopened the Veteran's hearing loss claim, finding the evidence submitted to be new and material. Regardless of the RO's actions, the Board must itself determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). The Board finds the evidence received since the June 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. Specifically, this evidence includes VA treatment records containing audiological consultations, lay statements, and his hearing testimony before the undersigned. The new evidence raises a reasonable possibility of substantiating the claim as it addresses whether the Veteran has a hearing loss disability for VA purposes that is related to service, and therefore addresses the reasons for the previous denial. Such evidence is presumed credible solely for the purpose of determining whether new and material evidence has been submitted. See Justus, 3 Vet. App. at 513. Accordingly, the claim for service connection for hearing loss is reopened. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained below, the Board has determined that additional development is necessary before the merits of the Veteran's claim for service connection for hearing loss can be addressed. REASONS FOR REMAND As an initial matter, the record confirms that the Veteran has a hearing loss disability for service connection purposes, as his initial VA audiological examination in March 2013 reflected bilateral sensorineural hearing loss. See 38 C.F.R. § 3.385. Additionally, the Board concedes exposure to noise in service. While this DD Form 214 notes that his Military Occupational Specialty (MOS) was a bridge crewman (constructs bridges and rafts to help soldiers cross rough terrain, bodies of water, and barriers they might encounter in the field), as this is an MOS that VA considers to be highly probable for hazardous noise exposure. Additionally, he stated at his hearing before the undersigned that he also assisted in training Army Rangers. Specifically, he reported exposure to weapons and artillery fire. The Veteran has also been service-connected for tinnitus based on his military noise exposure. As such, the remaining question is whether the Veteran's hearing loss is related to such noise exposure. The Veteran was afforded a VA examination for his initial service connection claim in March 2013. The examiner opined that it was less likely as not that his hearing loss was related to his military noise exposure, explaining that the Veteran's separation examination was negative for hearing loss. The Board notes, however, that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, not only did the examiner base the entire negative opinion on the lack of in-service hearing loss, but the rationale, confusingly, also contains positive evidence in the Veteran's favor. Specifically, the examiner noted the Veteran's in-service exposure to hazardous noise without hearing protection, and that he denied any civilian occupation or recreational noise exposure. Moreover, the examiner did address the possibility of delayed-onset hearing loss. For these reasons, the Board finds that an additional VA medical opinion is needed to determine the nature and etiology of the Veteran's hearing loss. The matter is therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hearing loss claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, the claims file should be sent to an appropriate examiner to determine whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss disability arose during service or is otherwise related to service, to include as due to his conceded noise exposure in performance of his duties. The need for a new physical examination is left to the discretion of the examiner. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should explain why the Veteran's current hearing loss is or is not merely a delayed onset of in-service noise exposure, as the absence of in-service evidence of hearing loss is not always fatal to a service connection claim. Evidence of a current 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. Noting that hearing loss did not manifest in service as the sole basis for forming a negative opinion, without additional explanation, is inadequate. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.