Citation Nr: A25035159 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230316-331456 DATE: April 16, 2025 ORDER The appeal for service connection for tinnitus is dismissed. New and relevant evidence having been submitted, readjudication of the claim for entitlement to service connection for bilateral hearing loss is warranted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) granted service connection for tinnitus in a December 2023 rating decision and assigned an effective date of July 19, 2021. 2. Since the August 2022 rating decision, new and relevant evidence was submitted that tends to prove or disprove a matter at issue in connection with the claim for entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria to dismiss the claim for service connection for tinnitus have been met. 38 U.S.C. § 7105. 2. Evidence submitted since the August 2022 denial of entitlement to service connection for bilateral hearing loss is new and relevant, and readjudication of the claim is warranted. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to June 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran filed for entitlement to service connection for bilateral hearing loss and tinnitus in a July 2021 VA Form 21-526EZ. The RO denied his claims in an August 2022 rating decision. In September 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the August 2022 decision. In November 2022, the agency of original jurisdiction (AOJ) issued a HLR decision, which considered the evidence of record at the time of the prior August 2022 decision and denied the claims. In November 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for bilateral hearing loss and tinnitus most recently addressed in a November 2022 HLR rating decision. In March 2023, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2023 AOJ supplemental claim decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for bilateral hearing loss, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). On April 25, 2023, VA received from the Veteran's representative an appellate brief which contained hyperlinks to content that was not otherwise part of the record on appeal; however, that content was not accessed nor considered as part of the record before the Board. See Bowey v. West, 11 Vet. App. 106, 108-09 (1998) (holding that the mere reference to non-VA documents is insufficient to incorporate them into the record). 1. Entitlement to service connection for tinnitus. The Veteran contends entitlement to service connection for tinnitus. See July 2021 VA Form 21-526EZ. As noted above, the Veteran filed a March 2023 Notice of Disagreement with respect to the March 2023 rating decision that denied service connection. In November 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for tinnitus most recently addressed in a March 2023 supplemental claim rating decision. In December 2023, the AOJ issued a supplemental claim decision and granted entitlement to service connection for tinnitus and assigned a 10 percent evaluation effective July 19, 2021. Generally, the effective date of compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). Under the modernized review system, a claim can be "continuously pursued" by filing an appropriate administrative review option to a rating decision, generally within one year from when the decision was issued. 38 C.F.R. § 3.2500(c). If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500(h). For rating decisions issued by the RO, the one-year time limit runs from the notice of the decision. 38 C.F.R. § 3.2500(c). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155. Here, VA received no intent to file or claim for entitlement for service connection for tinnitus until the Veteran's July 19, 2021, VA Form 21-526EZ. The March 2023 rating decision awarded service connection for tinnitus and awarded service connection effective July 19, 2021, the date of the Veteran's initial claim. This is a favorable finding and binding on the Board absent clear and unmistakable error. See 38 C.F.R. § 3.104(c). Accordingly, the Board finds that an effective date earlier than July 19, 2021, for the Veteran's service-connected tinnitus is not warranted. As the evidence of record demonstrates there are no other potential benefits stemming from the Veteran's claim on appeal, the Board finds the present appeal moot. See Green v. McDonough, 37?Vet. App.?127, 136-48 (2024); Bailey v. Wilkie, 33?Vet. App.?188, 204 (2021); see also Warren v. McDonald, 28?Vet. App.?214, 221 (2016) (holding that a subsequent AOJ decision cannot divest the Board of jurisdiction over the prior appeal; therefore, an AOJ grant of service connection cannot finally decide the claim of service connection already on appeal to the Board). As the March 2023 decision constitutes a full grant of the service connection benefit sought by the Veteran in this appeal stream, the Board finds that there remain no allegations of errors of fact or law for appellate consideration. Thus, the issue of service connection for tinnitus is dismissed. 38 U.S.C. § 7105. 2. New and relevant evidence having been submitted, readjudication of the claim for entitlement to service connection for bilateral hearing loss is warranted. The Veteran contends new and relevant evidence was submitted for his claim for entitlement to service connection for bilateral hearing loss. See November 2022 Statement in Support of Claim. The Board agrees. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). "New evidence" means evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" means information that tends to prove or disprove a matter at issue in a claim and includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501 (a)(1). In an August 2022 rating decision, the RO denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. The RO found that the Veteran had been diagnosed with a disability and that the Veteran's military occupational specialty (MOS) of armor crewman carried a high probability for hazardous noise exposure. These are favorable findings and binding on the Board absent clear and unmistakable error. See 38 C.F.R. § 3.104 (c). The Veteran filed an appropriate administrative review option, specifically a November 2022 Higher-Level Review request. At an October 2022 informal conference, the Veteran contended that his MOS required him to load ammunition on 50-cailber machine guns and that he was unable to consistently wear ear protection, and that the ear protection did not always fit. See October 2022 HLR - Informal Conference. The RO denied his claim in a November 2022 rating decision and reiterated the August 2022 favorable findings. The Veteran filed a Supplemental Claim Application in November 2022. He submitted a statement with his Supplemental Claim which stated, in part, "I was not exposed to any Loud noise before and after my military service." See November 2022 Statement in Support of Claim In March 2023, the RO denied the Veteran's claim for entitlement to service connection for bilateral hearing loss and reiterated the favorable findings contained in the August 2022 rating decision. The RO found that there was no new and relevant evidence submitted. The Veteran appealed his claim to the Board in a March 2023 VA Form 10182. The Board finds the Veteran's claim has been continuously pursued. 38 C.F.R. § 3.2500(c). Since the August 2022 rating decision, new and relevant evidence that tends to prove or disprove a matter at issue in the claim has been submitted. The Veteran's October 2022 and November 2022 statements regarding not always being able to wear ear protection, that the ear protection was ill-fitting, and that he had no pre-or-post service noise exposure is new and relevant evidence. Accordingly, readjudication of the claim for entitlement to service connection for bilateral hearing loss is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends entitlement to service connection for bilateral hearing loss. See July 2021 VA Form 21-526EZ. As noted above, in-service noise exposure and hearing loss for VA purposes have been conceded. Thus, the focus is on whether the Veteran's hearing loss is related to his in-service noise exposure. The Veteran had an enlistment audiological examination on May 25, 1973. Puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 4000 Right 10 05 10 10 Left 05 05 25 20 The Veteran had another audiological examination on May 29, 1973. Puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 4000 Right 05 00 05 05 Left 10 05 05 05 The Veteran had a separation audiological examination in April 1974. Puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 4000 Right 15 10 10 10 Left 15 10 10 05 There are no complaints of hearing loss in the Veteran's service treatment records. During the appeal period the Veteran was afforded a VA audiological examination in August 2022. The VA examiner found that the Veteran's bilateral hearing loss was less likely than not related to service because she found there was no significant threshold shift during service which indicated that there was no evidence of hearing loss caused by military noise exposure. She also reasoned that the Veteran's hearing was within normal limits on his separation examination. The Board finds the August 2022 VA medical opinion inadequate for adjudicative purposes. The August 2022 opinion relies on the fact that the Veteran's hearing was normal during service, and that his April 1974 separation audiogram was normal. See Hensley v. Brown, 5?Vet. App.?155, 164 (1993) (holding that VA may not deny service connection based?solely?on normal audiometric results upon separation from service). The Board finds that the failure to obtain an adequate medical opinion constitutes a pre-decisional duty to assist error, and therefore a remand is warranted so that an addendum medical opinion may be obtained. 38?C.F.R. §§?3.159(c), 20.802(a). The matters are REMANDED for the following action: 1. Obtain an opinion from a clinician regarding the etiology of the Veteran's bilateral hearing loss. If the examiner determines an examination is necessary, then one should be scheduled. A copy of this Remand and the claims file should be provided, and the examination report must reflect that the claims file was reviewed. The examiner is reminded that an opinion based solely on the lack of symptoms, diagnosis, or treatment for hearing loss during service, to include at separation, is not adequate. The examiner should address the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral hearing loss (i) is related to active service, to include conceded noise exposure; (ii) manifested within one year of his service separation in June 1974; or (iii) is otherwise etiologically related to his active service. The examiner must address the Veteran's lay statements regarding the use of hearing protection during service and pre-and-post service noise exposure. See October 28, 2022 HLR - Informal Conference and November 2022 VA 21-4138 Statement in Support of Claim. The examiner must provide a complete rationale for his or her opinions.? If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but must explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Houman 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.