Citation Nr: 0811566	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  06-18 414	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Huntington, West Virginia



THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen the claim of service connection for bilateral hearing 
loss.  

2.  Whether new and material evidence has been submitted to 
reopen the claim of service connection for scarring of the 
eardrums.  

3.  Whether new and material evidence has been submitted to 
reopen the claim of service connection for tinnitus.  



REPRESENTATION

Appellant represented by:	Marine Corps League




WITNESS AT HEARING ON APPEAL

The veteran



ATTORNEY FOR THE BOARD

G. Jackson, Associate Counsel



INTRODUCTION

The veteran served on active duty from April 1944 to May 1946  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2006 rating decision issued by 
the RO.  

The veteran testified before the undersigned Veterans Law 
Judge (VLJ) in a hearing at the RO in March 2008.  

Pursuant to a March 2008 motion and the Board's granting 
thereof, this case has been advanced on the Board's docket 
under 38 U.S.C.A. § 7107 (West 2002 & Supp. 2007); 38 C.F.R. 
§ 20.900(c) (2007).  

The Board observes that the veteran's claim of service 
connection for bilateral hearing loss has consistently 
included assertions concerning scarring of the eardrums and 
tinnitus.  The Board is aware that the appealed rating 
decision, Statement of the Case (SOC) and Supplemental 
Statement of the Case (SSOC) only address the issue of 
bilateral hearing loss.  Thus, taking the veteran's best 
interest into consideration, the Board characterizes the 
issues on appeal as listed hereinabove.

The veteran's claim was the subject of previous decisions.  
The Board has a legal duty to address the "new and material 
evidence" requirement under 38 C.F.R. § 3.156(a) regardless 
of the actions of the RO.  

If the Board finds that new and material evidence has been 
submitted, it is bound by a statutory mandate to consider the 
merits of the case.  Barnett v. Brown, 8 Vet.App. 1, 4 
(1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also 
McGinnis v. Brown, 4 Vet.App. 239, 244 (1993).  

The reopened claim of service connection for bilateral 
hearing loss, scarring of the eardrums and tinnitus are 
addressed in the REMAND portion of this document and are 
being remanded to the RO via the Appeals Management Center 
(AMC), in Washington, DC.  



FINDING OF FACT

The evidence presented since the May 1997 rating decision 
raises a reasonable possibility of substantiating the 
veteran's claims of service connection for hearing problems.  



CONCLUSION OF LAW

New and material evidence has been submitted to reopen the 
claim of service connection for a bilateral hearing loss, to 
include scarring of the eardrums and tinnitus.  38 U.S.C.A. 
§ 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the Veterans Claims Assistance Act of 
2000 (VCAA) was enacted.  VCAA has since been codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.  
This change in the law is applicable to all claims filed on 
or after the date of enactment of VCAA, or filed before the 
date of enactment and not yet final as of that date.  

Given the favorable action taken hereinbelow, no further 
assistance in developing the facts pertinent to this limited 
matter is required at this time.  

Generally, a final rating decision may not be reopened and 
allowed, and a claim based on the same factual basis may not 
be considered.  38 U.S.C.A. §§ 7104, 7105.  Under 38 U.S.C.A. 
§ 5108, however, "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."  

Under 38 C.F.R. § 3.156(a), the revised provisions of which 
are effective in this case because the veteran's claim was 
received subsequent to August 29, 2001, "new and material 
evidence" means evidence not previously submitted to agency 
decision makers which, by itself or in connection with 
evidence previously included in the record, "relates to an 
unestablished fact necessary to substantiate the claim."  
Such evidence must also "raise a reasonable possibility of 
substantiating the claim."  

In this case, the veteran's original claims of service 
connection for bilateral hearing loss, scarring of the 
eardrums and tinnitus were denied in a May 1993 rating 
decision.  

The veteran applied to reopen his claims in February 1997.  
In a rating decision promulgated in May 1997, the RO 
determined that new and material evidence had not been 
submitted to reopen the claims.  

Thus, the decisions are final under 38 U.S.C.A. § 7105.  The 
Board must first ascertain in this case whether new and 
material evidence has been received to reopen the claims.  

Since the May 1997 decision, the veteran has submitted 
private treatment records dated April 2000 to June 2000.  In 
an April 2000 record, the veteran reported being around a lot 
of cannon fire during World War II.  The result was loss of 
hearing and chronic roaring tinnitus since World War II.  The 
veteran was diagnosed with mild to moderately severe 
sensorineural hearing loss in the right ear with poor 
discrimination and moderate to severe sensorineural hearing 
loss in the left ear with poor discrimination.  

The veteran also submitted a private doctor's audiological 
examination report from March 2004.  

The veteran also offered various lay statements, including a 
transcript of his March 2008 hearing, reporting the history 
of his hearing disability.  The veteran reported developing 
hearing problems due to noise exposure aboard the USS 
Springfield, CL-66 during World War II.  

This new evidence of record raises a reasonable possibility 
of substantiating the veteran's claims of service connection.  
Accordingly, new and material evidence has been submitted to 
reopen the claims of service connection a bilateral hearing 
loss, scarring of the eardrums and tinnitus.  



ORDER

As new and material evidence has been submitted to reopen the 
claims of service connection for bilateral hearing loss, 
bilateral scarring of the eardrums and tinnitus, the appeal 
to this extent is allowed, subject to further action as 
discussed hereinbelow.  



REMAND

Having reopened the claim of service connection for bilateral 
hearing loss, bilateral scarring of the eardrums and 
tinnitus, additional development is necessary with respect to 
the claims.  

Subsequent to service, medical records are replete with 
reference to treatment for hearing disability.  An April 1993 
private record diagnosed sensorineural hearing loss which 
could be consistent, at least in part, with noise induced 
hearing loss.  The veteran was also diagnosed with tinnitus.

In an April 2000 private record, as noted, the veteran 
reported being around a lot of cannon fire during World War 
II.  

At his March 2008 hearing, the veteran testified that he 
suffered hearing problems since service due to noise exposure 
aboard the USS Springfield, CL-66 during World War II.  

To date, the RO has not afforded the veteran a VA 
examination, with an opinion as to the etiology of his 
claimed disorder.  Such an opinion is "necessary" under 
38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence 
that the veteran has a current disability (or persistent or 
recurrent symptoms of a disability), (2) there is evidence 
establishing that the veteran suffered an event, injury or 
disease in service or has a disease or symptoms of a disease 
within a specified presumptive period, (3) there is an 
indication the current disability or symptoms may be 
associated with service, and (4) there is not sufficient 
medical evidence to make a decision.  See 38 U.S.C.A. 
§ 5103A(c)(4).  

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United 
States Court of Appeals for Veterans Claims (Court) addressed 
the four elements that must be considered in determining 
whether a VA medical examination must be provided as required 
by 38 U.S.C.A. § 5103A.  

The Court further held that types of evidence that 
"indicate" a current disability may be associated with 
service include medical evidence that suggest a nexus but is 
too equivocal or lacking in specificity to support a decision 
on the merits, or credible evidence of continuity of 
symptomatology such as pain or other symptoms capable of lay 
observation. 

Accordingly, the reopened claims are REMANDED to the RO for 
the following action:

1. The RO should take appropriate steps 
to contact the veteran in order to have 
him provide information referable to all 
treatment received for the bilateral 
hearing loss, bilateral scarring of the 
eardrums and tinnitus since service.  
Based on the response, the RO should 
undertake all indicated action to obtain 
copies of all clinical records from any 
previously un-identified treatment 
source.  The veteran should also be 
informed that he can submit evidence to 
support his claims.  

2.  The veteran should be afforded a VA 
examination to determine the nature and 
likely etiology of the claimed bilateral 
hearing loss, scarring of the eardrums 
and tinnitus.  

The veteran's claims file must be made 
available to the examiner for review in 
conjunction with the evaluation.  All 
studies deemed necessary must be 
performed.  

Based on a review of the claims file and 
the clinical findings of the examination, 
the examiner must opine as to whether the 
veteran has current bilateral hearing 
loss, bilateral scarring of the eardrums 
and tinnitus that at least as likely as 
not (e.g., a 50 percent or greater 
likelihood) had their clinical onset due 
to noise exposure during his period of 
active service.  A complete rationale 
should be given for all opinions and 
conclusions expressed in a typewritten 
report.  

3.  After completion of the above 
development, the veteran's claims of 
service connection for bilateral hearing 
loss, bilateral scarring of the eardrums 
and tinnitus should be readjudicated.  If 
the determination remains adverse to the 
veteran, he and his representative should 
be furnished with a Supplemental 
Statement of the Case and given an 
opportunity to respond thereto.  

Then if indicated, this case should be returned to the Board 
for the purpose of appellate disposition.  

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).  



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals




 Department of Veterans Affairs