Citation Nr: 0809735 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-34 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right ear hearing loss, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from February 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which determined that new and material evidence had not been submitted sufficient to reopen the claim of entitlement to service connection for right ear hearing loss. The decision not to reopen the claim was confirmed by the RO in June 2006. For the reasons stated below, the Board finds that new and material evidence has been received to reopen the claim for service connection, but that additional development is necessary regarding the underlying service connection claim. Accordingly, the matter of entitlement to service connection for right ear hearing loss, based on de novo review, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. In February 2008, the veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. The veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. A December 2002 rating decision confirmed a previous determination not to reopen the veteran's claim of entitlement to service connection for right ear hearing loss. The veteran did not appeal the decision and it became the last final denial on any basis. 3. Evidence submitted since the December 2002 rating decision, which confirmed a previous determination not to reopen the veteran's claim of entitlement to service connection for right ear hearing loss, was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss. CONCLUSION OF LAW Evidence received since the final December 2002 rating determination, wherein the RO confirmed a previous decision not to reopen the veteran's claim of entitlement to service connection for right ear hearing loss, is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The United States Court of Appeals for Veterans Claims (Court) addressed VA's duty to notify and assist in cases involving claims to reopen previously denied matters. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In light of the favorable finding with regard to the issue of whether new and material evidence has been submitted to reopen the claim for service connection for right ear hearing loss, and the finding that a remand for additional development of the claim on the merits is required, the Board finds that further discussion of VCAA compliance is not warranted at this time. Analysis The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran seeks to reopen a claim for service connection for right ear hearing loss last denied by the RO in December 2002. The veteran asserts that he has right ear hearing loss related to noise exposure while performing duties as a boiler technician in service. In May 1975, the RO denied service connection for right ear hearing loss, finding, essentially, that right ear hearing loss pre-existed service and there was no evidence of aggravation therein. The RO notified the veteran of his appellate rights by way of a May 1975 letter. The veteran did not appeal the decision and the decision became final. 38 C.F.R. §§ 20.302, 20.1103 (2007). In March 1996, the RO determined that new and material evidence had not been submitted sufficient to reopen the claim of entitlement to service connection for right ear hearing loss. While the veteran submitted a timely notice of disagreement (NOD), and the RO issued a statement of the case (SOC), the veteran did not perfect an appeal on this issue by returning a timely VA Form 9 (or document that may be accepted in lieu thereof.). The March 1996 RO decision became final. 38 U.S.C.A. § 7105. In December 2002, the RO again determined that new and material evidence had not been submitted sufficient to reopen the claim of entitlement to service connection for right ear hearing loss. The veteran did not appeal the decision. This is the last final denial on any basis. 38 C.F.R. §§ 20.302, 20.1103. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The record indicates that in its December 2002 rating decision, the RO confirmed a previous denial of service connection for right ear hearing loss. The RO determined that the veteran failed to submit new and material evidence showing that pre-existing right ear hearing loss was aggravated by his active military service. Of record at the time of the December 2002 rating decision were the veteran's service medical records, which show the veteran had right ear sensorineural hearing loss upon enlistment in July 1967. He was given an H-2 in the Physical Profile Serial or as it is more commonly known, PUHLES. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (Observing that the "PUHLES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of fitness for retention in the military service.). During service, the veteran was treated for chronic otitis media, right ear pain, tympanic membrane thickening, and complaints of right ear hearing loss. The October 1969 separation examination continued to show right ear hearing loss. Post-service, the March 1975 VA examination showed improvement in right ear hearing. Thereafter, reports of VA examination in April 1981, July 1995, and August 1995 showed mixed right ear hearing loss. A 1981 Civil Service examination also confirmed right ear hearing loss. Private medical records reveal the veteran complained of right ear hearing loss, which he indicated existed since 1969. An Occupational History shows the veteran had noise exposure as follows: 1967-1969, in service while performing duties as a boiler technician; 1970-1987, while performing duties as a carpenter and plumber; 1987-1988, while performing duties as a pipe fitter; 1988-1989, while performing duties as a laborer; and 1989, while performing duties as a marine carpenter. A January 1994 Notice of Threshold Shift showed the veteran had hearing loss due to noise exposure. VA outpatient treatment records dated in 2001 and 2002 contain complaints of right ear hearing loss of a longstanding nature. An October 2002 VA examiner opined hearing loss was as likely as not caused while the veteran was in the military. Evidence submitted subsequent to the December 2002 rating decision includes VA outpatient treatment records dated between 2004 and 2006, which show the veteran continued to be treated for right ear hearing loss. Upon VA examination in October 2005, the veteran was diagnosed with right ear sensorineural hearing loss, status post infection in service. The veteran presented testimony before the Board in February 2008. He testified that while performing duties as a boiler technician, he was exposed to constant heat and noise for a period of 18 months. He further testified that he was treated for chronic otitis media, for which service connection is currently effect, on multiple occasions. He stated that right ear hearing loss was the result of infection and repeated exposure to the environment of the boiler room. As noted previously, the December 2002 rating decision confirmed a previous denial of service connection on the basis that the veteran failed to submit new and material evidence showing that pre-existing right ear hearing loss was aggravated during the veteran's period of active military service. Pursuant to 38 U.S.C.A. § 1111, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). On review of the record, the Board finds that the additional evidence received is new, as it was not previously submitted to agency decisionmakers. Since it includes an October 2005 VA medical opinion that the veteran has right ear sensorineural hearing loss, status post infection in service, this evidence when considered with the veteran's testimony, relates to an unestablished fact necessary to substantiate the claim, i.e. whether pre-existing right ear hearing loss was aggravated by chronic otitis media in service. Hence it is material as it is 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. It also raises a reasonable possibility of substantiating the claim. Therefore, the veteran's claim of entitlement to service connection for right ear hearing loss is reopened. See 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received; the claim of entitlement to service connection for right ear hearing loss is reopened. To this extent only the benefit sought on appeal is allowed. REMAND Reopening the veteran's claim of entitlement to service connection for right ear hearing loss does not end the Board's inquiry. Rather, the Board must now consider the merits of the claim for service connection. However, the Board finds that additional development is necessary prior to a final adjudication of the merits of the veteran's claim. Review of the record reveals that there are competing medical opinions as to the likelihood that the veteran's pre-existing right ear hearing loss was aggravated during his active military service beyond the normal progression of the disease. As such a new examination is indicated. 38 U.S.C.A. § 5103A. In this regard, as noted above, the veteran's July 1967 enlistment examination showed right ear sensorineural hearing loss. During service, the veteran was treated for chronic otitis media, right ear pain, tympanic membrane thickening, and complaints of right ear hearing loss. The October 1969 separation examination continued to show right ear hearing loss, with some improvement. Post-service, the March 1975 report of VA examination also showed improvement in right ear hearing. Thereafter, VA and private treatment records show mixed right ear hearing loss. An October 2002 VA examiner opined hearing loss was as likely as not caused while the veteran was in the military; however, no opinion was offered as to whether pre-existing hearing loss was aggravated by the veteran's military service. The October 2005 VA examination findings seemed to suggest that right ear sensorineural hearing loss was the result of infection in service, though no definitive nexus opinion was rendered. An Occupational History associated with the claims folder reveals the veteran had post-service noise exposure. Specifically, he was exposed to high levels of noise while performing duties as a carpenter, plumber, pipe fitter, laborer, and a marine carpenter from 1970 to 1989. The veteran must be examined for the purpose of having a medical specialist express an opinion as to whether the veteran's right ear hearing loss was aggravated by his active duty service beyond the natural progress of the disease. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.306. As this matter is being remanded to afford the veteran a VA examination, the RO should take the opportunity to ensure that all duties to notify and assist are fulfilled, to include attempts to obtain copies any outstanding records of pertinent medical treatment. Accordingly, the case is REMANDED for the following action: 1. The AMC must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007) are fully complied with and satisfied, with respect to the de novo claim of entitlement to service connection for right ear hearing loss. 2. Thereafter, the veteran should then be afforded a VA audiological examination to determine whether right ear hearing loss was aggravated by his active service. The claims folder should be made available to and reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the veteran, the examiner should render an opinion as to whether the veteran's pre-existing right ear hearing loss underwent a permanent increase in severity of the underlying disability during the veteran's active duty service. If so, the examiner should indicate whether the condition worsened beyond the natural progress of the disorder. The examiner should provide the complete rationale for any opinions expressed. 3. Thereafter, after the completion of any indicated additional development, the AMC should readjudicate the de novo claim of entitlement to service connection for right ear hearing loss. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). Appropriate time is to be allowed for response. The purpose of this remand is to assist the veteran with the development of his claim. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim 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.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ DENNIS F.CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs