Citation Nr: 22015490 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-54 764 DATE: March 17, 2022 ORDER The petition to reopen a previously denied claim for service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed December 2011 rating decision, the Regional Office (RO) denied the Veteran's original claim for bilateral hearing loss. 2. The evidence received since the December 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The December 2011 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2021). 2. The additional evidence received since the December 2011 rating decision is new and material and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1969. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The petition to reopen a previously denied claim for service connection for bilateral hearing loss Rating decisions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a Notice of Disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, "[i]f 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." "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the present case, a December 2011 rating decision denied the Veteran's original service connection for bilateral hearing loss, finding no evidence of acoustic trauma during service or nexus between the diagnosed hearing loss and service. Specifically, evidence considered at the time included the Veteran's service treatment records containing both entrance and separation audiograms, a December 2011 VA audiological examination, and the Veteran's lay assertions. Relevant evidence received since the final denial in December 2011 includes the Veteran's May 2018 petition to reopen, the Veteran's lay assertions, and a September 2018 VA audiological examination report. The examination report contains an opinion that the Veteran was exposed to acoustic trauma in service and provides an opinion regarding a nexus to service. This evidence is therefore new and material, and the criteria for reopening the claim for service connection for bilateral hearing loss is met. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss. A remand is necessary to provide the Veteran with an adequate VA examination to help determine the likely etiology of the bilateral hearing loss. The Veteran underwent a VA audiology examination in December 2011 at which time the VA audiologist confirmed a diagnosis of bilateral hearing loss for VA purposes, and opined that the Veteran's hearing loss was not related to service as hearing was normal in service with no complaints of hearing loss in service and the Veteran only noticed symptoms in the last few years. At the September 2018 VA audiological examination, the VA audiologist confirmed the diagnosis of bilateral hearing loss for VA purposes but opined that it was less likely than not related to military noise exposure. As rationale, the audiologist noted that the Veteran's hearing appeared to improve during service which suggested no permanent auditory damage, and that the Veteran denied complaints of hearing loss or other ENT complaints at separation. The audiologist noted that the relationship of noise, auditory damage, and hearing loss was well established; but there must be a nexus and stated that the evidence was against a nexus. The audiologist also noted that the Veteran reported first noticing hearing loss during service. The September 2018 VA examiner acknowledged the Veteran's exposure to hazardous noise in service. The Board finds both VA opinions are inadequate. First, the December 2011 and September 2018 examiners impermissibly relied solely on the absence of evidence of hearing loss in service in forming the unfavorable opinions. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Second, the September 2018 examiner did not provide rationale regarding the lack of a nexus to service. Third, in providing the opinion, the September 2018 examiner also did not consider the Veteran's reports that he first noticed his hearing loss in service and that it has been continuous since service. Given these deficiencies in the medical opinions, in light of the reopening of the Veteran's claim, remand is necessary for an adequate medical opinion. Barr v. Nicholson, 21 Vet. App. 303 at 311. The matter is REMANDED for the following action: Provide the Veteran with a current VA audiological examination and opinion regarding the nature and etiology of his bilateral hearing loss. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After a thorough review of the claims file, the examiner is asked to: (a) Elicit from the Veteran the history and onset of symptoms of his difficulty hearing. (b) Provide an opinion as to whether it is at least as likely as not (i.e., an approximate balance of favorable and unfavorable evidence) that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to it, to include exposure to recognized in-service acoustic trauma. In doing so, address the Veteran's competent lay assertions that he first noticed hearing loss in service, was not provided hearing protection, and that the hearing loss has been continuous since service. **Please note: The lack of hearing loss during service is not a bar for a claim for service connection. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). A complete rationale should be provided for any opinion provided. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 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 resorting 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. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.