Citation Nr: 0811195 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-31 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The veteran served on active duty from December 1963 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The January 2005 rating decision denied service connection for tinnitus and denied reopening a claim for service connection for bilateral hearing loss. The issues of entitlement to service connection for bilateral hearing loss and 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. An unappealed June 1998 rating decision denied a claim for service connection for bilateral hearing loss. 2. Evidence received since the June 1998 decision is not cumulative or redundant 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 to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for service connection for bilateral hearing loss was originally denied by the RO in a June 1998 unappealed rating decision. In October 2004, the veteran submitted his request to reopen his claim for service connection for bilateral hearing loss. Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2007). Absent appeal, a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007). 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. 38 U.S.C.A. § 5108. 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). The evidence of record prior to the June 1998 final rating decision included the veteran's service medical records. These records show that the veteran was an aircraft mechanic and that he was exposed to the acoustic trauma of B-52 engines. On one occasion in service an audiogram revealed the veteran to have bilateral hearing loss. See January 3, 1967 Occupational Health Physical Examination Report. The June 1998 rating decision denied the veteran's claim, partly on the basis that there was no hearing loss in service and no evidence of current hearing loss. The newly submitted evidence includes statements dated in February 2006 by the veteran and his ex-wife. These statements were submitted directly to the Board, and were received in March 2006, within 90 days of the December 2005 letter informing the veteran of the transfer of his appeal to the Board. The veteran did not waive consideration of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2007). The Board will consider this evidence for the limited purpose of reopening the claim; the AOJ will then have an opportunity to consider this evidence in adjudicating the reopened claim, as discussed below. Concerning the veteran's hearing loss, the statement by the veteran's former spouse is that, during his tour of duty at Ellsworth Air Force Base, the veteran sustained severe damage to his hearing from the excessive engine noise, and that he complained about the ringing in his ears and had a hard time hearing people. Taken at face value, Justus v. Principi, 3 Vet. App. 510, 513 (1992), the Board considers this statement to be evidence of the veteran's hearing loss during his military service. The Board, therefore, finds that this evidence is material to the veteran's claim. And, as the RO previously denied the claim partly on the basis that the veteran did not have hearing loss during service, it relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is both new and material, and the veteran's claim for entitlement to service connection for bilateral hearing loss is reopened. Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). Since the previously final claim of entitlement to service connection for bilateral hearing loss has been reopened, the Board need not make a determination as to whether the notice requirements of Kent v. Nicholson, 20 Vet. App. 1 (2006) have been met. In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). ORDER New and material evidence having been submitted the claim for service connection for bilateral hearing loss is reopened. To this extent the appeal is granted. REMAND In February 2006, within 90 days of certification of the veteran's appeal to the Board, the veteran submitted additional evidence pertinent to the issues on appeal. The veteran has not waived RO review of the additional evidence. Due process requires that the RO review this evidence prior to adjudication of the veteran's appeal by the Board. 38 C.F.R. § 20.1304 (2007). In this case, the veteran has not been provided a VA audiological examination. The record indicates that the veteran was exposed to acoustic trauma during service and indicates that the veteran had an episode of hearing loss during service. There is also some evidence that the veteran may currently have hearing loss related to service, as he mentioned in his February 2006 statement that he needs hearing aids. Accordingly, the veteran should be provided a VA audiological examination. See 38 C.F.R. 3.159(c)(4). The Board notes that a VA audiometric examination report would also be relevant to the veteran's claim for service connection for tinnitus. The appellant is hereby notified that it is the appellant's responsibility to report for the 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 (2007). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish disability ratings and effective dates if service connection was granted. The Board also notes that, in connection with his receipt of VA pension benefits, the veteran submitted a copy of a September 2003 award letter from the Social Security Administration (SSA). The RO has not attempted to obtain records from the SSA. VA has an obligation to obtain records from the SSA. See e.g., Murincsak v. Derwinski, 2 Vet. App. 363 (1992), Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that provides an explanation as to the information or evidence needed to establish disability ratings and effective dates for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Obtain records from the Social Security Administration concerning the veteran's award of disability benefits. 3. Schedule the veteran for a VA audiometric examination. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. If the veteran is found to have hearing loss or tinnitus, the examiner should provide an opinion as to whether it is at least as likely as not such hearing loss and/or tinnitus are related to the veteran's service, considering any noise exposure in service as shown by the December 1966 and January 1967 Occupational Health Physical Examination Reports. 4. When the above actions have been accomplished, readjudicate the claims and issue a supplemental statement of the case, showing consideration of all evidence submitted since the September 2005 statement of the case, including the February 2006 statements by the veteran and his former spouse, which were submitted directly to the Board. Then afford the veteran and his representative the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs