Citation Nr: 22018649 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-07 959 DATE: March 30, 2022 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a September 1972 rating decision, the Regional Office (RO) denied the petition to reopen the claim of entitlement to 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 September 1972 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1969 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2021 hearing. A hearing transcript has been associated with the record. Petition to Reopen Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. §3.385 "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. New and material evidence having been received, reopening of the claim of entitlement to service connection for bilateral hearing loss is granted. The AOJ initially denied the Veteran's claim of service connection for bilateral hearing loss in an April 1970 rating decision, finding that the Veteran's bilateral hearing loss was a preexisting condition which was not aggravated by service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the claim within one year of the decision. Therefore, it became final. The AOJ again denied the Veteran's claim in September 1972 for not providing new and material evidence to reopen the claim. Again, the Veteran was provided notice of this decision and his appellate rights but did not appeal the claim within one year of the decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence considered includes the Veteran's service treatment records, VA treatment records, private treatment records and lay statements. The evidence received since the September 1972 rating decision includes evidence that is both new and material to the claim. The Veteran was afforded a VA examination in June 2016 that opines whether the Veteran's preexisting condition was clear and unmistakably aggravated by service. This new evidence raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Service Connection Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss stems from service. See VA 21-526EZ Application for Disability Compensation. Specifically, the Veteran contends that in-service noise exposure caused his hearing loss. See April 2019 Statement in Support of Claim. The Veteran's service treatment records reveal that in a May 1968 pre-induction examination, the Veteran marks that he has hearing loss. An audiometric testing conducted in a February 1969 service entrance examination found the Veteran had hearing loss in both ears under 38 C.F.R. § 3.385. In a September 1969 treatment record, it was noted that the Veteran knew of his bilateral hearing loss since he was 12. It stated that the Veteran was given three audiograms for the Marines and was told the last one was good enough to qualify. A November 1969 Medical Board Report noted that the Veteran had hearing loss since early childhood and that he initially flunked the entrance hearing examinations but eventually passed. Also in November 1969, the Veteran signed a certificate relative to a full and fair hearing before the evaluation board certifying that his hearing loss was not incurred in or aggravated by service. In a June 2016 addendum opinion, the VA examiner opined that the Veteran's hearing loss clearly and unmistakably existed prior to military service and was not permanently aggravated beyond its natural progression while in service. The examiner based his opinion on the September 1969 treatment note which was referenced in the report and the certificate relative to a full and fair hearing before a physical evaluation board, which was signed by the Veteran in November 1969. However, this rationale is not sufficient to decide the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). This opinion is therefore insufficient to decide the claim. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board regrets the additional delay, but an adequate VA examination is needed before the Board can render a decision on this issue. The matter is REMANDED for the following action: 1. The appellant should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the appellant and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, an addendum VA opinion must be obtained to determine the etiology of his claimed bilateral hearing loss. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting bilateral hearing loss WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate 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 resort 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, Associate 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.