Citation Nr: 21041371 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-61 785 DATE: July 9, 2021 ORDER New and material evidence having been received, the claim of service connection for bilateral hearing loss, is reopened and, to this extent only, the appeal is granted. REMANDED The issue of service connection for bilateral hearing loss is remanded. The issue of service connection for a left leg condition, as secondary to service-connected post-operative rupture of the achilles tendon, is remanded. FINDINGS OF FACT 1. In a final September 2012 rating decision, the Regional Office (RO) denied the Veteran's claim of service connection for bilateral hearing loss. 2. Evidence associated with the record since the final September 2012 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raise a reasonable possibility of substantiating the Veteran's claim of service connection for bilateral hearing loss. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1981 to January 1986. The Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) hearing in April 2021. The transcript indicates that the transcriber misidentified the undersigned Veterans Law Judge as the "REPRESENTATIVE," but correctly identified the Veteran's representative by name. New and material evidence has been received since the September 2012 final denial, and the claim of service connection for bilateral hearing loss is reopened. The issues of service connection for bilateral hearing loss and for a left leg condition, as secondary to the service-connected right ankle disability, will be remanded. New and Material Evidence 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. New and material evidence having been received, the claim of service connection for bilateral hearing loss, is reopened and, to this extent only, the appeal is granted. The Veteran's claim was denied in September 2012. He was notified of the outcome and did not file a notice of disagreement or any additional relevant evidence within one year of the September 2012 decision. The September 2012 rating decision became final based on the evidence then of record. The evidence considered in September 2012 includes VA treatment records, private treatment records, lay statements, and a March 2010 audiological examination. The September 2012 rating decision denied the Veteran's claim based on the RO's finding that there was no evidence that the Veteran has hearing loss for VA purposes. Since the last final rating decision, the evidence includes VA audiological assessments, service treatment records, lay statements, and April 2021 Board hearing testimony. The evidence was not previously considered and tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the claim is reopened. REASONS FOR REMAND 1. The issue of service connection for bilateral hearing loss is remanded. 2. The issue service connection for a left leg condition, as secondary to service-connected post-operative rupture of the achilles tendon, is remanded. The matters are REMANDED for the following action: 1. The most recent VA treatment records in the claims file are dated April 2017. In the April 2021 Board hearing, the Veteran testified that he was treated for his left leg disorder at a VA Medical Center (VAMC) in 2019/2020, and that he had a scheduled VA appointment for hearing loss, after the Board hearing in April 2021. The RO MUST obtain these records and all outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of the Veteran's bilateral hearing loss. The Veteran's claims file, to include a copy of this Remand, must be reviewed by the examiner. The examination report should reflect that this review was done. The examiner is ADVISED that the Veteran served as an aircraft maintenance specialist throughout his service. In-service audiograms show that the Veteran was exposed to aircraft noise. Therefore, THE VETERAN IS FOUND TO HAVE in-service exposure to acoustic trauma. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner MUST provide the following opinions: (a.) Determine whether the Veteran has current hearing loss for VA purposes. (b.) Provide an opinion as to whether any current hearing loss is related to the Veteran's service, to include in-service exposure to acoustic trauma, which was been found. The examiner must review the entire record in conjunction with the requested opinion. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The October 1980 report of medical examination at service entrance shows audiometric data, in decibels, as follows: right ear: 0dB at 1000Hz; 0dB at 2000Hz; 0dB at 3000Hz; and 0dB at 4000Hz; and left ear: 0dB at 1000Hz; 10dB at 2000Hz; 5dB at 3000Hz; and 5dB at 4000Hz. * A March 1981 audiogram shows audiometric data, in decibels, as follows: right ear: 0dB at 1000Hz; 5dB at 2000Hz; 10dB at 3000Hz; and 5dB at 4000Hz; and left ear: 0dB at 1000Hz; 15dB at 2000Hz; 15dB at 3000Hz; and 15dB at 4000Hz. * An August 1981 audiogram shows audiometric data, in decibels, as follows: right ear: 0dB at 1000Hz; 5dB at 2000Hz; 10dB at 3000Hz; and 5dB at 4000Hz; and left ear: 0dB at 1000Hz; 15dB at 2000Hz; 15dB at 3000Hz; and 15dB at 4000Hz. * A June 1982 audiogram shows audiometric data, in decibels, as follows: right ear: 0dB at 1000Hz; 5dB at 2000Hz; 10dB at 3000Hz; and 5dB at 4000Hz; and left ear: 0dB at 1000Hz; 0dB at 2000Hz; 10dB at 3000Hz; and 5dB at 4000Hz. * A December 1985 audiogram at service separation shows audiometric data, in decibels, as follows: right ear: 0dB at 1000Hz; 0dB at 2000Hz; 10dB at 3000Hz; and 10dB at 4000Hz; and left ear: 0dB at 1000Hz; 5dB at 2000Hz; 5dB at 3000Hz; and 10dB at 4000Hz. * In a March 2010 audiological examination, the Veteran reported that his hearing loss began in 1986 and that he believes that in-service noise exposure contributed to his current hearing loss. The examiner noted that a review of service treatment records revealed normal hearing at service entrance, normal hearing in-service, and normal hearing at service separation. Upon examination, the examiner noted that the Veteran has mild sensorineural hearing loss bilaterally, and the Maryland CNC speech recognition score was 100 percent bilaterally. In terms of occupational impact, the examiner noted that the Veteran has difficulty hearing conversation. In terms of the impact on his daily life, the examiner noted that the Veteran is unable to hear. The examiner opined that it is at least as likely as not that the Veteran's hearing loss is not related to exposure to military acoustic trauma. The examiner also opined that it is at least as likely as not that the Veteran's tinnitus (although not at issue in this remand) is associated with noise exposure because high levels of noise exposure are known to produce tinnitus in humans. However, aside from simply stating that the Veteran's hearing was normal at separation, the examiner offered no further explanation for the opinion, and the examiner did not explain why the Veteran's tinnitus is at least as likely as not related to his in-service noise exposure while also finding that it is at least as likely as not that the Veteran's hearing loss is not related to exposure to military acoustic trauma. * A June 2014 VA audiology consultation shows that the Veteran reported a ten-year history of hearing loss and that he has difficulty hearing his eight-year-old twin daughters. Upon evaluation, the examiner noted normal hearing at all test frequencies with excellent word recognition bilaterally. * In a January 2015 VA primary care note, the Veteran reported right ear hearing loss, and stated "I can't hear female voices as much, or low pitch [voices], or television." The Veteran was referred to audiology. * A February 2015 VA audiology consultation shows that the Veteran was evaluated for hearing loss. The examiner noted that the Veteran was evaluated in June 2014 and was found to have normal hearing bilaterally. The Veteran reported that he is not able to understand female voices. Upon evaluation, the examiner noted normal bilateral hearing through 8kHz and excellent word recognition bilaterally. * An August 2015 VA audiological assessment shows that the Veteran complained of difficulty hearing female voices. The examiner noted that audiological testing in June 2014 and February 2015 showed normal hearing sensitivity in both ears with excellent word recognition for words presented at soft, medium, and loud sounds. Upon evaluation, the examiner noted that the Veteran had normal bilateral hearing between the range of .25 and 8kHz, with excellent word recognition scores bilaterally. However, an evaluation of the Veteran's ability to hear in competing noise revealed sensorineural hearing loss indicating a mild impairment for word understanding in competing noise. The examiner noted that hearing aids were not an option for the Veteran since he has normal hearing sensitivity. * In his April 2021 Board hearing, the Veteran testified that he heard the sonic boom of aircraft taking off at the end of the runway all day everyday in-service, and that there was a constant barrage of nose on the flight line. He testified that he first noticed hearing loss after service when he noticed that female voices and light voices, generally, were hard to hear. He also testified that he used ear plugs and earmuffs in-service, and that he was not exposed to high noise levels post-service as a schoolteacher, an operator in a chemical plant, and an electrician. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left leg disorder, as secondary to the service-connected right ankle disability. The entire claims file, including a copy of the Remand, should be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence, history provided by the Veteran, and sound medical principles, the VA examiner must provide the following opinions: (a.) Identify whether the Veteran's left leg disorder was caused by or aggravated by his service-connected right ankle disability. (b.) If the examiner determines that the Veteran's left leg disorder was not caused by or aggravated by his service-connected right ankle disability, the examiner is asked to provide the likely etiology of the left leg disorder. (c.) In providing the requested opinions, the examiner MUST consider and discuss the Veteran's reports of overcompensating on his left leg due to his right ankle disability. (d.) THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran's post-operative rupture, achilles tendon is service connected. * The Veteran has a current diagnosis of left knee strain. * In a November 2015 VA examination, the Veteran reported that his left leg pain resulted in overcompensating for his right ankle disability. The examiner opined that the left leg condition is less likely as not proximately due to or the result of the Veteran's right ankle disability. However, the examiner stated that the Veteran's current condition is consistent with his reported history and likely a result of his overcompensation for his right ankle/leg condition. * In his April 2021 Board hearing, the Veteran testified that his left leg pain began in 2001. He testified that due to his right ankle condition, he put more pressure on his left leg. He testified that his left shoe tread wears unevenly and faster than his right shoe. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed, and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 4. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.