Citation Nr: 0811385 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-29 245 ) 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 received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from October 1957 to October 1960. He also apparently served from October 1955 to October 1957, although the dates of such service have not been verified. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In connection with his appeal, the veteran initially requested a personal hearing before a local Hearing Officer at the RO. In a December 2007 statement, however, the veteran withdrew his request and asked that his appeal be forwarded to the Board without further delay. As set forth in more detail below, a remand is required with respect to the claim of service connection for a right shoulder disability. The issue 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. In a January 2003 rating decision, the RO denied the veteran's claims of service connection for bilateral hearing loss, tinnitus, and a right shoulder disability. Although the veteran was duly notified of this decision and his appellate rights in a January 2003 letter, he did not perfect an appeal within the applicable time period. 2. The evidence received since the final January 2003 rating denying service connection for bilateral hearing loss, tinnitus, and a right shoulder disability includes evidence not previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for bilateral hearing loss, tinnitus, and a right shoulder disability. 3. Hearing loss was not present during the veteran's active service or for many years thereafter and the most probative evidence shows that the veteran's current hearing loss is not causally related to his active service or any incident therein, including exposure to acoustic trauma. 4. In clinical settings, the veteran has repeatedly denied currently having tinnitus and the record on appeal otherwise contains no indication that any current tinnitus is causally related to his active service or any incident therein, including exposure to acoustic trauma. CONCLUSIONS OF LAW 1. The January 2003 rating decision denying service connection for bilateral hearing loss, tinnitus, and a right shoulder disability is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. Evidence received since the last final rating decision denying service connection for bilateral hearing loss, tinnitus, and a right shoulder disability is new and material, and the veteran's claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Bilateral hearing loss and tinnitus were not incurred in active service, nor may such disabilities be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist Duty to Notify Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in the context of a claim to reopen, VA must look at the bases for the denial in the prior decision and respond with a VCAA notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In this case, in a May 2004 letter issued prior to the initial decision on the claim, the RO notified the veteran of the information and evidence needed to substantiate and complete a claim of service connection, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter also advised the veteran to submit or identify any evidence he felt would support his claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board acknowledges that the VCAA letter discussed above does not specifically satisfy all of the notice requirements of section 5103(a), particularly the additional requirements delineated by the Court in Dingess/Hartman. Nonetheless, in a March 2006 letter, the RO corrected this deficiency by issuing a letter for the express purpose of satisfying the Court's decision in Dingess/Hartman. Neither the veteran nor his representative responded to the RO's letter or otherwise submitted or identified any additional evidence in support of the claims. Cf. Medrano v. Nicholson, 21 Vet. App. 165 (2007) (holding that after VA provides a content-compliant VCAA notice, albeit in an untimely manner, and a claimant subsequently informs VA there is no further evidence to submit, the failure by the RO to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication would be no different than the previous adjudication). The Board further acknowledges that the May 2004 VCAA letter discussed above does not specifically satisfy the additional requirements delineated by the Court in Kent. As set forth below, however, the Board has reopened the veteran's claims. Thus, in light of this favorable decision, any deficiency in VA's Kent notice is harmless error. For the reasons discussed above, the Board finds that VA has fulfilled its VCAA notification duties to the veteran to the extent necessary. Neither the veteran nor his representative has argued otherwise. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In this case, the veteran's service medical records are on file as are post-service VA clinical records. Despite being given the opportunity to do so, the veteran has neither submitted nor identified any post-service private clinical records pertaining to his claims. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2007). The veteran has also been afforded a VA medical examination in connection with his claims. 38 C.F.R. § 3.159(c)(4) (2007). The Board finds that the reports of these examinations provide the necessary medical opinions for issuing a decision with respect to the issues adjudicated in this decision. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA duties to the veteran. A remand for additional notification or development would only result in unnecessarily delaying this matter with no benefit flowing to the veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, no further notification or development action is necessary on the issues now being decided. Again, neither the veteran nor his representative has argued otherwise. Background The veteran's service medical records show that at his October 1955 military enlistment medical examination, his ears, upper extremities, and musculoskeletal system were normal. The veteran's hearing acuity was 15/15 on whispered voice testing. In April 1957, the veteran underwent X-ray studies of the right shoulder. The nature of the symptoms necessitating the X-ray study are not noted. Regardless, the results of the X- ray study were negative. At his October 1957 military discharge and reenlistment medical examination, the veteran's ears, upper extremities, and musculoskeletal system were normal. The veteran's hearing acuity was 15/15 on whispered and spoken voice testing. In November 1958, the veteran again underwent X-ray studies of the right shoulder after he injured it in an automobile accident. The results of the study were negative. At his October 1960 military separation medical examination, the veteran's ears, upper extremities, and musculoskeletal system were normal. The veteran's hearing acuity was 15/15 on whispered and spoken voice testing. The veteran's DD Form 214 shows that his military occupational specialties were rifleman and rifle marksmanship instructor. He received the Good Conduct Medal, but no other awards or decorations indicative of combat service. He had no foreign or overseas service. In August 2002, the veteran submitted an original application for VA compensation benefits, seeking service connection for hearing loss, tinnitus, and a right shoulder disability. He indicated that it was his belief that his current hearing loss and tinnitus were related to his exposure to acoustic trauma during service. He indicated that his right shoulder disability had been incurred in service in April 1957. In a January 2003 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus, finding that the service medical records were negative for complaints or findings of hearing loss or tinnitus and that the record on appeal contained no competent evidence that the veteran currently had hearing loss or tinnitus. In addition, the RO denied service connection for a right shoulder disability, finding that the service medical records did not show a diagnosis of a right shoulder disability, nor did the evidence show that the veteran currently had a right shoulder disability. The veteran was notified of the RO's decision and his appellate rights in a January 2003 letter, but he did not appeal. In April 2004, the veteran requested reopening of his claims of service connection for hearing loss, tinnitus, and a right shoulder disability. He indicated that he had been a rifle range instructor during service, which required him to be on the range where he was exposed to daily gunfire. He indicated that he had not been required to wear hearing protection. As a result, he indicated that he currently had hearing loss and ringing in his ears constantly. With respect to his right shoulder, the veteran stated that he had been involved in a car accident in 1957 in which he had injured his shoulder. He indicated that he had been riding in a truck which flipped over several times, injuring him and several other Marines. Since that time, the veteran indicated that he had had right shoulder pain and limited motion. In support of the veteran's claim, the RO obtained VA clinical records, dated from August 2003 to April 2004. In pertinent part, these records show that in August 2003, the veteran sought treatment for difficulty hearing. He denied tinnitus. He reported a positive history as a weapons instructor during service, as well as post-service occupational noise exposure. Examination showed sensorineural hearing loss consistent with history of noise exposure and age. Ear molds were obtained for hearing aids. In February 2004, the veteran complained of increasing problems with mobility of his right shoulder. The assessment was sprain of the medial collateral ligament. At an orthopedic consultation in April 2004, the veteran reported that he originally injured his right shoulder during service. He indicated that he had had chronic pain off and on since that time. Over the last several years, his pain had increased. X-ray studies showed osteoarthritis and calcific tendonitis. Physical therapy was recommended. The veteran underwent VA medical examination in June 2005, at which he reported difficulty hearing. He again denied tinnitus. The veteran indicated that he had a history of noise exposure during service as a weapons instructor. He also indicated that he had post-service occupational noise exposure, including in farming, trucking and manufacturing. Recreational noise exposure was limited to occasional nonmilitary firearms use. Audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 65 65 65 LEFT 25 65 70 65 65 Speech audiometry revealed speech recognition ability of 88 percent correct, bilaterally. After examining the veteran and reviewing the claims folder, the examiner concluded that the veteran's hearing loss was not caused by or the result of in-service acoustic trauma. The examiner explained that the veteran's hearing had been normal at service separation and that there was no evidence of complaints consistent with any hearing disability from the date of discharge to 2003. She indicated that the veteran's current hearing loss was not consistent with noise exposure in the distant past. At a VA orthopedic examination in June 2005, the veteran reported that he had been involved in an automobile accident in service in which he injured his right shoulder. He indicated that it was his belief that he separated his right shoulder in the accident. Since that time, the veteran indicated that his shoulder would spontaneously dislocate from time to time. X-ray studies showed mild to moderate osteoarthritic changes. There was no evidence of fracture or dislocation. There was soft tissue calcification adjacent to the proximal humerus of uncertain etiology. The diagnosis was degenerative arthritis of the right shoulder, with probable chronic dislocation. The examiner indicated that without reviewing the veteran's claims folder, he could not resolve the question of whether the veteran's current right shoulder condition was incurred in service. Thereafter, in July 2005, the examiner reviewed the veteran's claims folder. It appears that he concluded that the veteran's shoulder disability was not due to an in-service motor vehicle accident, although his opinion is, unfortunately, unclear. Applicable Law Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as arthritis or an organic disease of the nervous system like sensorineural hearing loss, may be also be established on a presumptive basis by showing that such a disease 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; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). New and material evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. 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, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. 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). Analysis Bilateral hearing loss and tinnitus As set forth above, in a January 2003 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus, in part, on the basis that the record showed that the veteran did not currently have a hearing loss disability or tinnitus. Because the veteran did not appeal the January 2003 rating decision, it is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The veteran, however, now seeks to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the record, with particular attention to the additional evidence received since the final January 2003 rating decision denying service connection for bilateral hearing loss and tinnitus. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional medical evidence received includes the June 2005 VA medical examination report in which the veteran was diagnosed as having a bilateral hearing loss disability. In addition, the veteran has submitted an April 2004 statement to the effect that he has continuous ringing in his ears. For purposes of determining whether the evidence is new and material, the Board presumes the credibility of his statement. See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that tinnitus is subjective and the kind of condition which lay evidence is competent to describe). As noted, the veteran's claims of service connection were previously denied on the basis that the record contained no evidence showing that he currently had hearing loss or tinnitus. He has now provided such evidence. The Board finds that this evidence is new in that it was not previously of record. Moreover, this evidence is material as it relates to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that the evidence discussed above is sufficient to constitute new and material evidence within the meaning of 38 C.F.R. § 3.156. The claims are therefore reopened. Although the evidence discussed above is adequate for the limited purposes of reopening the claims, this does not make it sufficient to allow the grant of the benefits sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (material evidence is evidence that would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim). Turning to the merits of the veteran's claims of service- connection for bilateral hearing loss and tinnitus, the Board notes that the veteran contends that he currently has hearing loss and tinnitus as a result of exposure to acoustic trauma during service. As an initial matter, the Board finds that the record on appeal corroborates the veteran's contentions of in-service noise exposure. His service personnel records confirm that he served as a rifleman and a rifle marksmanship instructor. Thus, his statements of noise exposure during service are consistent with his military occupational speciality. As noted, however, that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In this case, the veteran's service medical records are entirely negative for complaints or findings of hearing loss or tinnitus. Indeed, at his October 1960 military discharge medical examination, the veteran's ears were normal and his hearing acuity was within normal limits on spoken and whispered voice testing. Moreover, the Board notes that the record on appeal is negative for medical evidence of a hearing loss disability or tinnitus for decades after service separation. In fact, the first clinical evidence of hearing loss of record is not until August 2003, approximately 33 years after service, when the veteran sought VA medical treatment and was fitted for hearing aids. The Board notes that although the veteran reported a constant ringing in his ears on his April 2004 claim to reopen, the objective medical evidence shows that tinnitus is not currently present. For example, when he was examined by VA in August 2003, he specifically denied tinnitus. Likewise, at the June 2005 VA medical examination, the veteran again denied tinnitus. The Board assigns more probative value to the veteran's statements in clinical settings, than in a statement submitted in support of a claim for VA compensation benefits. Based on the evidence set forth above, the Board finds that a chronic hearing loss disability or tinnitus was not present in service or within the post-service year. The Board has considered the provisions of 38 C.F.R. § 3.303(b), in light of the veteran's recent claims that his hearing loss and tinnitus began during service. In Savage v. Gober, 10 Vet. App. 488 (1997), it was noted that while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity. As set forth above, the record here contains a span of more than three decades without any clinical evidence to support his recent assertions of a continuity of symptomatology. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous hearing loss and tinnitus since service is highly probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, the Board notes that although the veteran now recalls that his hearing loss and tinnitus began during service, contemporaneous records do not support his recollections. Specifically, the Board notes that at his October 1960 military discharge medical examination, the veteran's ears and hearing acuity were within normal limits. While the Board has considered the veteran's contentions that his hearing loss and tinnitus began during service, it finds that the contemporaneous records are entitled to more probative weight than the recollections of the veteran of events which occurred decades previously. Although the most probative evidence shows that a chronic hearing loss disability or tinnitus was not present during service, the Board notes that even if a veteran does not have hearing loss during the time of active duty, such does not prohibit service connection. Hensley, 5 Vet. App. at 159-60. Rather, service connection may still be established if a veteran currently satisfies the criteria of 38 C.F.R. § 3.385, and the evidence links current hearing loss with service. Id. at 158. See also 38 C.F.R. § 3.303(d). Thus, the Board has carefully reviewed the record for evidence showing that any current hearing loss and/or tinnitus are the result of acoustic trauma he sustained during his active service. In that regard, the Board notes that in June 2005, a VA medical examiner, after examining the veteran and reviewing his claims folder, concluded that it is not as least as likely as not that the veteran's current high frequency sensorineural hearing loss is related to his military service, including exposure to acoustic trauma therein. The Board finds that the VA medical opinions is persuasive and assigns it great probative weight. The unequivocal opinion was rendered by an audiologist who clearly has the expertise to opine on the matter at issue in this case. In addition, she addressed the veteran's contentions, gave a considered rationale for her opinion, and based such opinion on a review of the veteran's entire claims folder, including all of his service medical records. The only evidence of record which contradicts this medical opinion is the opinion of the veteran. He has argued that his current hearing loss is due to exposure to acoustic trauma during service. It is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as the etiology of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The statements offered in support of the veteran's claim are not competent medical evidence and do not serve to establish a nexus between the veteran's current hearing loss and service. With respect to the veteran's tinnitus, the Board notes that while the veteran claimed that he had constant ringing in his ears on his April 2004 claim, in clinical settings he has consistently denied having tinnitus. Thus, the record on appeal is entirely negative for a medical diagnosis of tinnitus. The Board assigns greater probative weight to the veteran's statements regarding his statements in clinical settings than to his statements made in connection with a claim for VA compensation benefits. Moreover, the Board notes that the record on appeal contains no indication that any current tinnitus is causally related to the veteran's active service or any incident therein, including exposure to acoustic trauma. In summary, the Board finds that the most probative evidence shows that a chronic hearing loss disability was not present during service or for many years thereafter and that the veteran's current hearing loss is not causally related to his active service or any incident therein, including noise exposure. The most probative evidence shows that the veteran does not currently have tinnitus, nor is there any indication that any current tinnitus is causally related to the veteran's active service or any incident therein, including exposure to acoustic trauma. Again, the Board has considered the veteran's recent contentions of continuous hearing loss and tinnitus since service. However, there is a years-long evidentiary gap in this case between the veteran's military service and the earliest objective evidence of a complaint of hearing loss and tinnitus. In addition to the June 2005 VA medical opinion which constitutes affirmative evidence against the claim for service connection, the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that hearing loss and tinnitus are the result of acoustic trauma injuries sustained in service which in turn resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the clinical findings of normal hearing acuity at service separation, plus the lack of any objective evidence of hearing loss or tinnitus between the veteran's military service and the evidence showing hearing loss in 2004 and a claim of tinnitus in 2002 is itself evidence which tends to show that such conditions did not have their onset in service or for many years thereafter and is not the result of acoustic trauma sustained in service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In this case, the Board has considered the absence of any medical evidence of hearing loss and tinnitus in service and for decades after service, as well as the opinions of the VA examiner who found the absence of such evidence significant, and the Board concludes that the preponderance of the evidence in this case is against the claim of service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Right shoulder disability As set forth above, in a January 2003 rating decision, the RO denied service connection for a right shoulder disability, in part, on the basis that the record showed that the veteran did not currently have a right shoulder disability. Because the veteran did not appeal the January 2003 rating decision, it is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The veteran, however, now seeks to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156. Thus, the Board has reviewed the record, with particular attention to the additional evidence received since the final January 2003 rating decision denying service connection for a right shoulder disability. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional medical evidence received includes the June 2005 VA medical examination report in which the veteran was diagnosed as having degenerative arthritis of the right shoulder with probable chronic dislocation. In addition, the veteran has stated that he has had pain and spontaneous dislocations of his right shoulder from time to time since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds that this evidence is new in that it was not previously of record. Moreover, this evidence is material as it relates to an unestablished fact necessary to substantiate the claim. As noted, the veteran's claim of service connection was previously denied on the basis that the record contained no evidence showing that he currently had a right shoulder disability. He has now provided such evidence. Thus, the Board finds that the evidence discussed above is sufficient to constitute new and material evidence within the meaning of 38 C.F.R. § 3.156. The claim is therefore reopened. Although the evidence discussed above is adequate for the limited purposes of reopening the claims, this does not make it sufficient to allow the grant of the benefits sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (material evidence is evidence that would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim). Further development is required. This will be discussed in the remand below. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened; to that extent only, the appeal is granted. REMAND As set forth above, the veteran contends that his current right shoulder disability is causally related to injuries he sustained in service. He further contends that he experienced chronic right shoulder symptoms after service. After having carefully considered the matter, the Board believes that additional development is in order prior to further appellate consideration. The veteran's service medical records show that he received medical treatment in connection with his right shoulder on at least two occasions. X-ray studies of the right shoulder were conducted in April 1957 and again November 1958. In addition, the record on appeal contains medical evidence of a current diagnosis of a right shoulder disability (degenerative arthritis with probable chronic dislocation). Again, the veteran has also reported repeated right shoulder dislocations since his in-service right shoulder injury. In light of this evidence, the Board finds that a medical opinion is necessary. 38 C.F.R. § 3.149(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). The Board acknowledges that the veteran previously underwent VA medical examination in June 2005 to determine the etiology of his current right shoulder disability. Unfortunately, however, the rationale for the examiner's opinion is unclear. This has not escaped the attention of the veteran's representative who has requested a remand of this matter for the purpose of obtaining a clear VA medical opinion. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be afforded a VA medical examination for the purposes of determining the nature and etiology of her current right shoulder disability. The claims folder should be provided to the examiner for review in connection with the examination. After examining the veteran and reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current right shoulder disability is causally related to the veteran's active service or any incident therein, including treatment for right shoulder complaints in 1957 or 1958. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 2. After conducting any additional development required, the RO should readjudicate the veteran's claim, considering all the evidence of record. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board, if in order. The veteran 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). 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs