Citation Nr: 0811253 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-38 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to reopen service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from June 1955 to October 1958 and July 1961 to October 1963. He also apparently had periods of active duty for training from 1979 to 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In December 2007, the veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO. A transcript of the hearing has been associated with the veteran's claims file. During his December 2007 Travel Board hearing, the veteran raised the issue of entitlement to service connection for tinnitus. The Board does not have jurisdiction of this issue as it has not been adjudicated by the RO. The issue is referred to the RO for appropriate action. The issue of service connection for a bilateral hearing loss on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was denied by the RO in a rating decision dated in May 1989, and the veteran did not perfect a substantive appeal. 2. By rating action dated in September 1990, the RO confirmed the prior denial of service connection for bilateral hearing loss, and the veteran did not perfect a substantive appeal. 3. Evidence submitted since the September 1990 RO decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 1990 rating decision that confirmed the prior denial of the veteran's claim of service connection for bilateral hearing loss became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2007). 2. The additional evidence received since the September 1990 RO rating decision confirming the prior denial of service connection for bilateral hearing loss is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify provisions of the statute and implementing regulations apply to claims to reopen based on new and material evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this decision, the Board is reopening the veteran's claim for service connection for bilateral hearing loss, and remanding it for further development. Because the claim has been reopened, any deficiency regarding notice of the basis for a prior final denial of a claim, or what information or evidence is necessary to reopen a claim, is not prejudicial to the appellant's claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). For this reason, no further discussion of VA's duties to notify and assist is required. Reopening Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from an injury sustained or disease incurred in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2007). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The failure to meet these criteria at the time of a veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d) (2007); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Service connection for certain chronic disorders, such as certain organic disorders of the nervous system, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2007); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran is seeking service connection for bilateral hearing loss. Because the veteran did not submit a substantive appeal to the September 1990 rating decision which confirmed the prior denial of service connection for bilateral hearing loss, that determination became final based on the evidence then of record. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claims. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a decision of the RO dated in May 1989, the veteran's claim of entitlement to service connection for bilateral hearing loss was denied. At the time of this decision, the medical evidence of record included the veteran's service medical records from his two periods of active service, a post-service Army Reserve examination report dated in May 1978, and a private medical record from the Pine Bluff Arsenal dated in June 1982. The RO determined that no hearing loss had been shown to have been incurred in service. Subsequent to the May 1989 decision, the veteran submitted a report of medical history from a period of his active duty for training with the Army Reserve dated in January 1990, showing that the veteran had reported hearing loss, and including audiometric findings showing that pure tone thresholds in the right ear at 500, 1000, 2000, and 4000 Hertz were 15, 5, 5, and 25 decibels, respectively. Pure tone thresholds in the left ear at 500, 1000, 2000, and 4000 Hertz were 15, 10, 5, and 45 decibels, respectively. In September 1990, the RO determined that the newly submitted evidence by the veteran was not sufficient to warrant a change in the prior May 1989 decision. The veteran did not appeal this decision, therefore, it became final. In April 2005, the veteran submitted a request to reopen his previously denied claim for service connection for bilateral hearing loss. In support of his claim, he submitted private medical records from the Little Rock Audiology Services dated in July 2005 and November 2007 indicating current mild dropping to severe bilateral sensorineural hearing loss. He also submitted a number of records from his period of active duty for training and from civil service with the Army Reserves dated from 1975 to 1984. During his December 2007 Travel Board hearing, the veteran asserted that he experienced bilateral hearing loss as a result of his first period of active service in the Navy, at which time he was exposed to acoustic trauma in his duty as a hot shell man responsible for loading 40 millimeter aircraft guns. He also described that he was exposed to substantial acoustic trauma during his long period of active duty for training, wherein he was responsible for instructing trainees on military operations in urban terrain. He stated that he was exposed to simulated grenade explosions, simulated artillery fire, and simulated 50 caliber machine guns for eight hours per day, five days per week, for two weeks per year, from 1979 to 1995. He also noted undergoing weekend individual training for pre-certification purposes, which also resulted to exposure to the simulated grenade explosions and artillery fire. In light of the foregoing, the Board finds that new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. The above evidence bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the veteran's claim of service connection for bilateral hearing loss. The additional medical evidence of record since the September 1990 RO decision suggests a 16 year history of noise exposure during active duty for training, hearing loss as measured during active duty for training period, and also shows current diagnoses of bilateral hearing loss, and audiometric test results that appear to show current bilateral hearing loss disability in both ears that meets the criteria under 38 C.F.R. § 3.385. For these reasons, the Board finds that new and material evidence has been received, and the claim for service connection for bilateral hearing loss is reopened. ORDER New and material evidence having been received, service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted. REMAND In reopening the veteran's claim for service connection for bilateral hearing loss, the Board reiterates that the veteran is currently diagnosed with bilateral hearing loss that appears to meet the regulatory criteria at 38 C.F.R. § 3.385 (40 decibel hearing loss at the 4000 Hertz range). The veteran asserts that he experienced bilateral hearing loss as a result of acoustic trauma during his period of Naval service, and during his long period of active duty for training from 1979 to 1995. While the veteran submitted some of his Army National Guard duty records that illustrate bilateral hearing loss during active duty for training, the record contained within his claims file is not complete. On remand, appropriate steps should be taken to verify the veteran's Army National Guard service, and to obtain all of his National Guard medical and personnel records and associate them with the claims file. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c), (d) (2007). Additionally, the July 2005 and November 2007 private audiologic evaluation reports from the Little Rock Audiology Services are in a graph format and have not been converted to an appropriate numerical form. Accordingly, should the veteran's reopened claim for service connection be denied on the basis that his current hearing bilateral hearing impairment does not meet VA regulatory definition of hearing loss "disability" under 38 C.F.R. § 3.385, these private audiologic reports will need to be translated by a certified specialist. See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that where audiogram in support of claim was submitted by claimant but without interpretation as to relevant regulatory provisions, Board must obtain such medical interpretation.). Finally, the veteran should be scheduled for a VA audiological examination addressing current measures of bilateral hearing loss, and the nature and etiology of any current bilateral hearing loss found on examination, and should include an opinion as to the relationship of current bilateral hearing loss to established multiple in-service acoustic traumas. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall take appropriate steps to verify the veteran's Army National Guard service and secure all additional Army National Guard service medical records or alternative records for the veteran through official channels or from any other appropriate source, including the Office of the Adjutant General. These records should be associated with the claims file. If there are no such records, documentation used in making that determination should be set forth in the claims file. 2. After the above development has been completed, the RO/AMC should arrange for the veteran to be scheduled for a VA audiology examination so as to ascertain the nature and etiology of his asserted bilateral hearing loss. The entire claims file must be made available to the examiner, and the examination report should include discussion of his documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should render an opinion, consistent with sound medical principles, as to whether the current bilateral sensorineural hearing loss had its onset during the veteran's periods of active service or active duty for training, or whether it is otherwise causally related to any incident thereof, to include noise exposure or other acoustic trauma(s) during service. The basis for all conclusions reached are to be explained by citing to medical records, to specifically include service medical records, active duty for training records, and other evidence of record. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. If the VA audiology examination report does not establish current hearing loss disability that meets the definition of 38 C.F.R. § 3.385, the RO/AMC shall arrange to have the July 2005 and November 2007 private audiograms from the Little Rock Audiology Services translated to numeric form by a VA audiologist. 4. The RO/AMC will then review the veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. The RO/AMC will then readjudicate on the merits the veteran's reopened claim for service connection for bilateral hearing loss. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a Supplemental Statement of the Case, containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case is to be returned to the Board, following applicable appellate procedure. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The veteran is advised of the importance of appearing and participating in a VA audiology examination, and that the failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). 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). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs