Citation Nr: 0810392 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-13 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ear disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from March 1948 to March 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the appellant's claims for service connection for otitis media and hearing loss were originally denied in a January 1992 rating decision; that January 1992 rating decision represents the last final action on the merits of those claims. Glynn v. Brown, 6 Vet. App. 523 (1994). The January 1992 rating decision also represents the last final decision on any basis as to the issues of service connection for a left ear disorder and hearing loss. Evans v. Brown, 9 Vet. App. 273 (1996). In February 2008, a hearing was held at the VA Central Office in Washington, D.C. before the undersigned, who is the Acting Veterans Law Judge rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. The reopened claims for service connection for a left ear disorder and hearing loss are addressed in the REMAND section below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for otitis media and hearing loss was denied in a January 1992 rating decision; notice was given to the appellant in February 1992, but he did not initiate or complete the procedural steps required for an appeal of those denials. 2. The evidence received since the January 1992 rating decision, when considered with previous evidence, does relate to unestablished facts necessary to substantiate the claims and, when considered together with the previous evidence of record, does raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The January 1992 rating decision that denied the appellant's claims of entitlement to service connection for otitis media and hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2007). 2. The evidence received subsequent to the January 1992 rating decision is new and material, and consequently does serve to reopen the appellant's claims of entitlement to service connection for a left ear disorder and hearing loss. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2007); 38 C.F.R. 3.102, 3.156, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board is granting the appellant's attempt to reopen the claims for service connection for a left ear disorder and hearing loss; the Board is granting in full the benefit (reopening of the claims) sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist in relation to either one of these two claims, such error was harmless and will not be further discussed. The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. The United States Court of Appeals for Veterans Claims (Court) has held that the new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The January 1992 rating decision, the last time the otitis media and hearing loss service connection claims were finally disallowed on any basis, is final. 38 C.F.R. § 20.1103. This is so because the appellant was notified of the denial in the next month, and he did not initiate an appeal within the time period allowed. Neither claim may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108; 38 C.F.R. § 3.156(a). Therefore, the appellant's claims may be reopened only if new and material evidence has been secured or presented since the January 1992 rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). The appellant submitted his claim to reopen in September 2004. The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The appellant's claims for service connection for otitis media and hearing loss were denied by the RO in essence because there was no evidence of any related incident during service; any new and material evidence must relate to this. The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Proper analysis of the question requires a determination of whether the claim should be reopened and, if so, an adjudication on the merits after compliance with the duty to assist. The evidence considered by the RO in making its January 1992 rating decision included the appellant's DD 214, his service medical records and his September 1991 VA Form 21-526. The evidence added to the record subsequent to the issuance of the January 1992 rating decision includes written statements from the appellant and his representative, the results of private audiometric testing conducted in February 2006, a page from the July 1951 deck log of the USS MISSISSIPPI, VA treatment records and the transcript from the appellant's February 2008 Board hearing in Washington, DC. The appellant testified that he was treated for ringing in his left ear, followed by swelling and inflammation of the left side after being exposed to the firing of his ship's guns in July 1951. He also testified that he was told in- service that he had otitis media, that he was treated with an antibiotic and that he was treated continuously from service separation to the present for a left ear condition for which he was prescribed antibiotics, including at the present time. The evidence of record added to the claims file after the January 1992 rating decision reveals that the appellant's ship did engage in the firing of its guns during July 1951, that the appellant was added to the Binnacle List in July 1951, and that he currently has hearing deficits that are compatible with high frequency hearing loss. The Board notes that the appellant is competent to testify that he has received treatment for his left ear condition since his service separation and that he has been prescribed antibiotics for his left ear condition. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). As previously noted, the credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, the claims file now contains evidence of continuity of a chronic left ear condition from service to the present. In addition, the evidence of record now indicates that the appellant could have been exposed to acoustic trauma in service and that he currently has hearing loss possibly related to noise exposure. The Board therefore finds that the evidence submitted subsequent to the January 1992 rating decision provides relevant information as to the questions of whether the appellant suffers from a left ear disorder and hearing loss that are related to his active service. The Board finds that the evidence cited above constitutes new and material evidence sufficient to reopen the claims for service connection for a left ear disorder and hearing loss. Having reopened the claims, the left ear claim and the hearing loss claim are addressed in the REMAND section which follows. ORDER The claims for service connection for a left ear disorder and hearing loss are reopened; to that extent only, the claims are granted. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below. In view of the account given by the appellant of events that happened in service and of the medical treatment that followed, the Board will ask for the RO to attempt to develop the record further as will be explained below. Regardless of whether additional records are obtained, the appellant should also be afforded VA audiometric and otolaryngology examinations to determine if any diagnosed ear or hearing disorder is traceable to his active military service. No comprehensive review of the veteran's medical history with medical opinion evidence as to the likely etiology of any hearing loss or left ear disorder has been obtained. Nor has an analysis of risk factors for hearing loss been undertaken, including analysis of such factors as post-service noise exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand such medical opinions should be obtained. In addition, it does not appear that the medical evidence of record is complete. The appellant has testified that he continues to be treated by a private physician for his claimed left ear disorder; none of these records are in the claims file. Review of the VA treatment records in the claims file indicates that the appellant underwent surgery for a sinus condition in 1975. None of the associated records have been obtained or added to the claims file. More importantly, the appellant contends that he received antibiotic treatment for a left ear condition over a 30-day period in the summer of 1951. However, the RO has not obtained the Binnacle List, the Sick Call Treatment Log or the Morning Report of the Sick for the USS MISSISSIPPI (EAG 128) for July, August and September of 1951. VA is therefore on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). In addition, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should, with the assistance of the appellant as needed, obtain the pertinent ship records and private treatment records and associate them with the claims file. In addition, all of the relevant VA treatment records not already of record should be obtained and associated with the claims file. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical opinions where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, this case is REMANDED for the following: 1. The AMC/RO 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) and implementing regulations found at 38 C.F.R. § 3.159 (2007) is completed. In particular, the AMC/RO must notify the appellant of the information and evidence needed to substantiate his left ear disorder and hearing loss service connection claims, and of what part of such evidence he should obtain and what part the Secretary will attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant should be told to submit all pertinent evidence he has in his possession. 2. The AMC/RO should take appropriate steps to secure the Binnacle List, the Sick Call Treatment Log and the Morning Report of the Sick for the USS MISSISSIPPI (EAG 128) for July, August and September of 1951. These records should be associated with the claims file. If there are no records, documentation used in making that determination should be included in the claims file. 3. All VA medical treatment records for the appellant dated from 2004 onward not already of record should be identified and obtained. These records should be associated with the claims file. If there are no records, documentation used in making that determination should be included in the claims file. 4. The AMC/RO should contact the appellant to obtain the names and addresses of all medical care providers who treated him for any ear or sinus disorder since service. In particular, the AMC/RO should obtain the records from the 1975 sinus surgery and the records from all treatment provided since 2004, to include from Dr. McCannon. After securing the necessary release(s), the AMC/RO should obtain those records that have not been previously secured. To the extent there is an attempt to obtain records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results, and should be given opportunity to submit the sought-after records. 5. After the above development is completed, the AMC/RO should arrange for the examination of the appellant by an audiologist and by an otolaryngologist in order to determine the nature, onset date and etiology of the appellant's claimed hearing loss and claimed left ear disorder. The examiners must review the information in the claims file, examine the veteran and provide an opinion as to the onset date and etiology of the appellant's current hearing loss and left ear disorder, if any. Each examiner should state in the report whether the claims file review was conducted. All appropriate tests should be conducted and the examiners should review the results of any testing prior to completion of any report. Audiometric testing of the appellant should be accomplished by the audiologist. The examiners must offer an opinion as to the medical probabilities that any current hearing loss or left ear disorder is attributable to the veteran's military service. The examiners should state whether or not any current ear disorder and/or hearing loss is attributable to the veteran's military service, some post-service incident, or some other cause or causes. The otolaryngologist should be requested to specifically identify all pathology present in the left ear. The examiner should describe all symptomatology due to the appellant's claimed ear conditions and discuss, in particular, whether or not the appellant has any disorder that is etiologically associated with any incident of service, including the claimed incidents of July 1951. The rationale for all opinions expressed should also be provided. 6. Any additional development suggested by the evidence should be undertaken. If the scheduling of any kind of medical examination, or the obtaining of a medical opinion, is necessary to adjudicate any issue, especially in light of any newly received treatment records, that development should be accomplished. 7. The AMC/RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If any report does not include all test reports, special studies or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the providing examiner for corrective action. 8. Thereafter, the AMC/RO should consider all of the evidence of record and re-adjudicate the appellant's claims. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs