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