Citation Nr: 22016135 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-30 896 DATE: March 21, 2022 ORDER New and material evidence having been received, reopening of the previously denied claim of service connection for tinnitus is granted, to this limited extent only. New and material evidence having been received, reopening of the previously denied claim of service connection for hearing loss is granted, to this limited extent only. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. Evidence received since the previous final rating decision adjudicating the matter of service connection for tinnitus is not cumulative or redundant of other evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 2. Evidence received since the previous final rating decision adjudicating the matter of service connection for hearing loss is not cumulative or redundant of other evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for hearing loss. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1960 to October 1964. These matters come before the Board of Veteran's Appeals (Board) from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As a threshold matter it is observed the Veteran requested a hearing in his VA Form 9, Appeal to the Board. Unfortunately, the Veteran did not attend the scheduled hearing. In February 2022, the Veteran reported he had not received the hearing notice. See VA 27-0820, Report of General Information, of February 2022. In March 2022, the Veteran's representative submitted a written statement wherein he noted the Veteran desires this appeal be presented to and adjudicated by a Veterans Law Judge. See Appellant's Brief Addendum, of March 2022. The Board interprets this statement as a request for a decision on the matters to be rendered without the benefit of a hearing at this time and finds the hearing request has been withdrawn. 38 C.F.R. § 20.704. Additionally, as it will be explained in more detail below, the matters on appeal require development prior to adjudication. Thus, if following completion of the requested development, the matters remain on appellate status in the legacy system and return to the Board, the Veteran may request a new opportunity to provide testimony before a Veterans Law Judge at that time. Quinn v. Wilkie, 31 Vet. App. 284 (2019). 1. Whether new and material evidence has been presented to reopen the previously denied claim of service connection for tinnitus 2. Whether new and material evidence has been presented to reopen the previously denied claim of service connection for hearing loss The Veteran seeks to reopen the previously denied claims of service connection for tinnitus and for hearing loss. In general, rating decisions that are not timely appealed become 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. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is existing evidence not previously considered by 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 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). 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). By way of history, the Veteran's claims of service connection for tinnitus and hearing loss were previously denied by the agency of original jurisdiction (AOJ) in a November 2009 rating decision, finding no evidence showing a diagnosis of either condition at the time, an in-service incurrence, nor a medical nexus between the claimed conditions and the Veteran's service. See November 2009 rating decision. The Veteran did not appeal that decision, nor was new and material evidence received within the year of its issuance; as such it became final. A May 2017 rating decision denied reopening the previously denied claims of service connection for tinnitus and hearing loss finding no new and material evidence. The Veteran did not appeal that decision and nor was new and material evidence received within the year of its issuance; as such it became final. In July 2018, the Veteran requested to reopen the previously denied claims of service connection for tinnitus and hearing loss. A September 2018 rating decision reopened the matter of service connection for tinnitus and denied on the merits but denied reopening the matter of service connection for hearing loss. See September 2018 rating decision. The Veteran presented a notice of disagreement (NOD) with the decision and the present appeal ensued. Thus, the question before the Board is whether new and material evidence has been submitted to reopen the previously denied claims of service connection for tinnitus and hearing loss. Here, the Veteran has submitted lay statements regarding the onset of his conditions and his in-service exposure to noise. Additionally, medical records showing treatment for hearing loss have also been associated with the claims file. This evidence, when considered as a whole, is found to be new and material as it was not before the AOJ when it previously adjudicated the matter on the merits and reasonably raises the possibility of substantiating the claims for service connection. As such, the Board finds that new and material evidence sufficient to reopen the previously denied claims of service connection for tinnitus and hearing loss has been received and reopening of the claims is warranted. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. 2. Entitlement to service connection for hearing loss is remanded. Unfortunately, the matters of service connection for tinnitus and hearing loss need to be remanded for development. The Veteran was administered a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ) in September 2018. The subscriber of the Hearing Loss DBQ opined that the Veteran's claimed conditions were less likely as not related to service. In support of the negative opinion provided for the hearing loss, the examiner noted that the Veteran's service treatment records (STRs) showed he was administered a whispered voice test to determine his hearing acuity upon entrance into service, which is not considered an accurate test of hearing acuity. He also noted that the Veteran had "normal hearing sensitivity" at separation. Thus, the examiner reasoned that because the Veteran's hearing was normal at separation, there was no objective evidence showing a permanent noise injury caused by the Veteran's military noise exposure affecting his hearing sensitivity, and therefore the Veteran's current hearing loss was less likely as not caused by or a result of his military noise exposure. This medical opinion is inadequate for adjudication purposes as the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim and the fact that there was no hearing loss in service is not dispositive of the issue. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Further, it is unclear from the opinion whether the examiner converted the Veteran's audiometric test results at separation from the standards set by the American Standards Association (ASA) to those set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Prior to November 1967, service department audiometric results were reported using standards set forth by the ASA. Since November 1, 1967, those standards have been set by the ISO-ANSI. Military audiograms dated before November 1967 must be converted from ASA to ISO-ANSI units prior to making findings related to a claimed hearing loss disability. The Veteran's separation examination report containing audiogram results is dated 1964. Thus, the results are assumed to have been reported using ASA standards and must be converted to ISO-ANSI units. Finally, the opinion does not consider the Veteran's lay statements regarding hearing difficulties in service. In February 2017, the Veteran submitted a written statement wherein he asserted that his tour of duty was aboard ships where he was exposed to noise exposure from anticraft weapons daily, as well as "monthly qualifying" on the weapon. He reported going to sick call and been given ear plugs but that he would often use the filters from cigarettes on his ears. He additionally stated that has experienced loss of hearing and constant ringing in both ears. See VA Form 21-4138, of February 2017. Additionally, in his NOD of November 2018, the Veteran asserted that his hearing difficulties began in service. See NOD of November 2018. Thus, for the reasons explained above, the Board finds the matter of service connection for hearing loss must be remanded for development. Regarding the medical opinion addressing the likely etiology of tinnitus, the Board observes the examiner based the negative opinion based on the Veteran's reported onset at the examination. However, the Veteran has since provided more information as to the onset of his condition, including experiencing tinnitus during service. See written statement submitted along NOD, dated November 2018. It is unclear from the evidence of record the exact circumstances that led the Veteran to report different onset dates. As such, upon remand the examiner is asked to obtain from the Veteran a complete history as to his tinnitus symptomatology and to provide a medical opinion on the likely etiology of the condition considering the Veteran's lay statements of record. The matters are REMANDED for the following actions: 1. Obtain outstanding VA medical records. 2. Schedule the Veteran for a VA examination regarding his hearing loss and tinnitus claims. The examiner is asked to: a. Obtain from the Veteran a history of his hearing difficulties and tinnitus symptomatology, b. Convert the audiogram results dated 1964 to ISO-ANSI units, c. Opine whether the Veteran's hearing loss is at least as likely as not related to his service, to include his claimed in-service noise exposures. d. Opine whether the Veteran's tinnitus is at least as likely as not related to his service, to include his claimed in-service noise exposures or whether otherwise the condition originated in service. (Continued on the next page) 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.