Citation Nr: 0810000 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-13 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The veteran served on active duty from September 1974 to November 1977 and from November 1978 to January 1985. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Baltimore, Maryland Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in January 2008. A transcript of that hearing is associated with the claims file. From the date of the hearing, the record was held open for 30 days in order to allow for the submission of additional evidence for consideration; however, no additional evidence was submitted within that time. For reasons explained below, the Board has concluded that new and material evidence has been submitted and that the veteran's previously-denied claim for service connection for bilateral hearing loss should be reopened. The Board further finds that additional development of the evidence is necessary prior to rendering a decision on the merits as to the underlying issue, namely whether the veteran's bilateral hearing loss was incurred in service. This issue, as well as the issue of entitlement to service connection for tinnitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed March 1989 rating decision, the RO denied the veteran's service connection claim for ears (later claimed as bilateral hearing loss). 2. The additional evidence received since the March 1989 rating decision raises a reasonable possibility of substantiating the veteran's bilateral hearing loss claim on the merits. CONCLUSION OF LAW The March 1989 rating decision denying service connection for bilateral hearing loss is final. New and material evidence has been submitted since that decision to reopen this claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2007). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced VA's duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. Given the disposition reached in this case, the Board finds that VA has met its VCAA duty to assist the veteran in the development of his new and material evidence claim on appeal. Pertinent Laws and Regulations Finality / new and material evidence In general, rating decisions that are not timely appealed are final and binding based on the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). A claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108 (West 2002), which provides that if 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 notes that there has been a regulatory change with respect to the definition of what constitutes new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. In the current case, evidence construed as a claim to reopen was received in January 2005, subsequent to that date. Therefore, the current version of the law, which is set forth in the following paragraph, is applicable in this case. New evidence means 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) (2007). A VA adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, then the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all of the evidence, both new and old, after ensuring that VA's statutory duty to assist the claimant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas- Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection - hearing loss For certain chronic disorders, per se, including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). However, this presumption is rebuttable by probative evidence to the contrary. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2007). Factual background In March 1989, the RO denied service connection for ears (later claimed as bilateral hearing loss) on the basis that the evidence failed to show that the disability was incurred in service. The veteran was informed of the March 1989 decision denying service connection by letter in March 1989. He did not file a timely appeal; hence, that decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104; 20.1103 (2007). The "old" evidence Evidence of record at the time of the March 1989 rating decision consisted of the veteran's service medical records. The service medical records include audiograms dated in August 1974, December 1974, January 1976, September 1977, and March 1981; these audiograms all show the veteran's hearing to be within normal limits. However, an incomplete audiometric evaluation dated in May 1975 shows significant bilateral hearing loss. (Notably, during his Travel Board hearing in January 2008, the veteran testified that this May 1975 hearing test was conducted after a cannon explosion. See Travel Board Hearing Transcript at page 6.) Nevertheless, a November 1976 audiogram shows mild hearing loss in the left ear, and a January 1985 discharge examination (also referred to as a Chapter 16 examination) shows mild to moderate bilateral hearing loss. Analysis The unappealed March 1989 rating decision that denied service connection for bilateral hearing loss is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007). As explained above, the veteran's claim for service connection may be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2007). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted evidence (i.e., since March 1989) raises a reasonable possibility of substantiating this claim, namely whether bilateral hearing loss was incurred in service. The additional evidence submitted in this case includes a January 2006 letter from the veteran's private physician, Dr. E.D. In this letter, the doctor refers to the veteran's private audiogram from November 2005 and states, "[The veteran] may have been exposed to very loud noise while in the service which may account for his sensorineural hearing loss in both ears..." See Letter from Dr. E.D., January 6, 2006. This January 2006 letter from Dr. E.D. is new and material evidence because it suggests that the veteran's bilateral hearing loss was incurred in service. Accordingly, this claim is reopened. See 38 C.F.R. § 3.156 (2007). Keep in mind, though, that although this additional evidence is sufficient for the limited purpose of reopening this claim, it ultimately may not be sufficient to permit the granting of this claim. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). This is yet to be determined, and this claim will not be readjudicated until completion of the additional development on remand. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened; to that extent only, the appeal is granted. REMAND Having reopened the claim of service connection for bilateral hearing loss, VA has a duty to assist the veteran in the development of evidence pertinent to this claim under 38 U.S.C.A. § 5107(b) (West 2002). Although the January 2006 letter from Dr. E.D. was sufficient to reopen this claim, it is not sufficient alone to enable the Board to grant this claim. The VCAA and its implementing regulations require VA to provide a veteran with an examination or to obtain a medical nexus opinion based upon a review of the evidence of record if VA determines that such measures are necessary to decide the claim on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Charles v. Principi, 16 Vet. App. 370 (2002). Competent medical evidence shows that the veteran currently does have bilateral hearing loss as well as tinnitus. During a June 2005 VA medical examination, the veteran was diagnosed with a "hearing problem" and "popping or tinnitus." See VA Examination Report, June 7, 2005. Furthermore, during a November 2005 private medical examination, the veteran was diagnosed with moderate to severe bilateral sensorineural hearing loss. See Letter from Dr. M.D.W., November 18, 2005. The Board acknowledges the evidence contained in the service medical records, including several audiograms showing varying degrees of hearing loss as well as multiple reports documenting the veteran's complaints of hearing loss and popping sounds in both ears. However, with regard to a medical nexus between any bilateral hearing loss or tinnitus that may have been incurred in service and the veteran's current such disabilities, the evidence of record is not probative. Specifically, the June 2005 VA examiner stated: "After reviewing [the veteran's] C- folder and all the discussion I have done during my exam[,] including multiple audiograms, I would have to say that for me it will be highly speculative to say whatever hearing loss and popping noise are due to noise exposure [in service] or not. For me to give an exit opinion, it is very essential that I get a very, very reliable audiogram and which is not existing at present. So, I would have to say that I cannot resolve this problem without mere speculation." See VA Examination Report, June 7, 2005. Additionally, in his January 2006 letter, Dr. E.D. reviewed the audiogram conducted by Dr. M.D.W. in November 2005 and stated: "[The veteran] may have been exposed to very loud noise while in the service which may account for his sensorineural hearing loss in both ears, the left more than the right." See Letter from Dr. E.D., January 6, 2006. (To this end, the Board notes a potential contradiction in the private medical evidence: the November 2005 private examination report characterizes the veteran's bilateral sensorineural hearing loss "with the right being greater than the left." See Letter from Dr. M.D.W., November 18, 2005.) In the Board's view, the medical opinions quoted above are too speculative to be probative. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). In addition, Dr. E.D.'s January 2006 opinion only applied to the veteran's bilateral hearing loss, and was silent with regard to his tinnitus. In view of these developments, a new VA examination and nexus opinion are warranted in order to fully and fairly evaluate both claims on appeal. During his Travel Board hearing in January 2008, the veteran testified that he had undergone a more recent VA audiological test in either late 2006 or early 2007, when he presented at the VA Medical Center (VAMC) in Baltimore, Maryland with complaints about his ears. See Travel Board Hearing Transcript at pages 10-12, 17, 19-20. The veteran also testified that he had presented at the VAMC in Fayetteville, North Carolina with complaints about his ears approximately five or six times between the years of 1985 and 1989. See id. at pages 23-25, 27, 32-34. In addition, the veteran testified that he had presented at the VAMC in Columbia, South Carolina with complaints about his ears several times between the years of 1988 and 1991. See id. at pages 25, 27- 29, 32-35. Accordingly, this case is REMANDED for the following actions: 1. The RO should contact the VAMC in Fayetteville and request that it provide any records pertaining to the veteran from 1985 to 1989. Associate this request and all records received with the claims file. If records are unavailable, then a negative reply is requested. 2. The RO should contact the VAMC in Columbia and request that it provide any records pertaining to the veteran from 1988 to 1991. Associate this request and all records received with the claims file. If records are unavailable, then a negative reply is requested. 3. The RO should contact the VAMC in Baltimore and request that it provide any records pertaining to the veteran from 2004 to the present, including any audiological test results from late 2006 or early 2007. Associate this request and all records received with the claims file. If records are unavailable, then a negative reply is requested. 4. After associating with the claims folder all available records received pursuant to the above-requested development, the veteran must be afforded an appropriate VA examination to determine the nature, extent and etiology of his bilateral hearing loss and tinnitus disabilities. It is imperative that the examiner who is designated to examine the veteran reviews the evidence in the claims folder, including a complete copy of this REMAND, and acknowledges such review in the examination report. All necessary tests should be conducted. The physician is requested to offer an opinion as to: (a). Does the veteran have bilateral hearing loss and/or tinnitus? If so, state the diagnosis or diagnoses. (b). If the examiner finds that the veteran has bilateral hearing loss and/or tinnitus, is it as least as likely as not (50 percent or more) that such disorder(s) are related to his periods of active service from September 1974 to November 1977 and/or from November 1978 to January 1985? The physician should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. A complete rationale should be given for all opinions and should be based on examination findings, historical records, and medical principles. 5. After completion of the foregoing and after undertaking any further development deemed warranted by the record, the RO must adjudicate the veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus on the merits. If any determination remains adverse to the veteran, then he and his representative should be furnished with a Supplemental Statement of the Case and should be afforded a reasonable period of time within which to respond thereto. The veteran has the right to submit additional evidence and argument on the matter or matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs