Citation Nr: 0812036 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-33 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for bilateral hearing loss. 2. Entitlement to an increased rating for bronchial asthma, currently assigned a 30 percent evaluation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from October 1980 to April 1985, and from July 1985 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2002. In March 2008, the veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT Evidence received since a January 1999 RO decision, which denied service connection for hearing loss, includes evidence which relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent required for a decision as to whether the claim is reopened, the Board finds that the notice and duty to assist provisions of the law have been met. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Service connection for bilateral hearing loss was denied by the RO in a January 1999 rating decision. The veteran did not appeal that decision, and, accordingly, it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2007). However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened, and if so reopened, the claim will be reviewed on a de novo basis. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet.App. 27 (1996); Manio v. Derwinski, 1 Vet.App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Evidence of record at the time of the prior final rating decision included service medical records, which did not show hearing loss for VA purposes. See 38 C.F.R. § 3.385. In addition, a post-service audiogram in September1998 showed hearing to be normal under 38 C.F.R. § 3.385. Evidence received since then includes testimony from the veteran at her hearing before the undersigned. At her hearing, she testified that she had had extensive noise exposure during service for several years while working as an airplane mechanic. This evidence of in-service noise exposure was not previously considered. In this regard, although the 1998 audiogram noted "aircraft" as prior history of noise exposure, the time of the noise exposure, i.e., service, was not identified. She testified that she has not been exposed to this type of noise after service. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Since this evidence of significant noise exposure during service was not before the RO at the time of the prior decision, it is new. Moreover, as hearing loss was not shown in service, it relates to a necessary element to establish her claim, under Hensley. Although there is no medical evidence establishing the current presence of hearing loss under 38 C.F.R. § 3.385, the veteran testified that she wears hearing aids, suggesting a reasonable possibility of a hearing loss disability for VA purposes. Moreover, VA medical records on file include a "health summary," which shows audiology clinic evaluations in January 2003, January 2004, and March 2004 with a diagnosis of sensorineural hearing loss. Accordingly, the new evidence raises a reasonable possibility of substantiating the claim. Hence, the claim is reopened with the submission of new and material evidence, and VA must review the claim in light of all the evidence, new and old. 38 C.F.R. § 3.156. ORDER New and material evidence to reopen the claim for service connection for bilateral hearing loss has been received; to that extent only, the appeal is granted. REMAND Because the claim for service connection for bilateral hearing loss has been reopened with the submission of new and material evidence, additional assistance in developing evidence pertinent to the veteran's claim must be provided. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Specifically, she must be provided a nexus opinion, which includes a claims file review by the examiner. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet.App. 370, 374-75 (2002); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In addition, records of post- service treatment, specifically, VA audiological evaluations referenced in a VAMC "health summary" as having been conducted on January 3, 2003, January 2, 2004, and March 10, 2004, with a diagnosis of sensorineural hearing loss. As to the claim for an increased rating, the veteran has not been provided sufficient notification that evidence must demonstrate a worsening or increase in severity of the disability and the effect that worsening has on her employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. In addition, because the criteria for rating bronchial asthma are based on specific criteria beyond the obvious effect of the worsening of the disability and its effect upon his employment and daily life, the notice must inform her of the information and evidence necessary to establish these more specific criteria. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). She must also be provided information regarding effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Currently, the veteran is in receipt of a 30 percent rating for bronchial asthma; a higher rating under the rating schedule requires pulmonary function tests showing FEV-1 or FEV-1/FVC values from 40 to 55 percent of the predicted value, or that the condition requires at least monthly visits to a physician for treatment of exacerbations, or systemic (oral or by injection) corticosteroid treatment at least three times per year. 38 C.F.R. § 4.97, Code 6602 (2007). There is medical evidence showing that she was treated at least twice with oral steroids between July 2003 and January 2004. Moreover, VA treatment records dated October 17, 2005 note that she was being seen for follow-up after an asthma exacerbation, treated with steroids, although the treatment of the exacerbation is not of record. On the VA examination in April 2004 she reported treatment for asthma as often as four times a month, while on the December 2005 examination by B. Green-Muldrow, M.D., she said that she required treatment by a physician for asthma as often as once a month. In addition, pulmonary function tests performed by a private doctor in October 2007 showed findings that, while still within the 30 percent range, were more severe than on the examination in December 2005. In view of the these factors, the veteran must be afforded an examination, which includes a claims file review by the examiner. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, the RO must make efforts to obtain all treatment records. In this regard, if the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the case is REMANDED for the following action: 1. Undertake all notification and development actions required by law for the claims at issue. See 38 U.S.C.A. §§ 5102, 5103, and 5103A; 38 C.F.R. § 3.159. Specifically, notify the veteran of the following: * The evidence and information necessary to substantiate her reopened claim for service connection for hearing loss, and the respective obligations that she and VA bear in the production or obtaining that evidence or information; * Request that she provide VA with any evidence in her possession that pertains to the claims; * Information regarding assigned ratings and effective dates; * That, for an increased rating for bronchial asthma, the evidence must demonstrate a worsening or increase in severity of the disability and the effect that worsening has on her employment and daily life; * That, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. * That she can submit lay or medical evidence of the effect on employment and/or daily life; * That for bronchial asthma, a higher rating under the rating schedule requires pulmonary function tests showing FEV-1 or FEV-1/FVC values from 40 to 55 percent of the predicted value, or that the condition requires at least monthly visits to a physician for treatment of exacerbations, or systemic (oral or by injection) corticosteroid treatment at least three times per year, which must be shown by medical evidence. 2. Ask the veteran to identify the locations and providers all medical treatment she has received for her bronchial asthma from September 2002 to the present. Tell her she must fully cooperate with VA's efforts to obtain relevant evidence. Obtain all available records, not previously on file, of any treatment for which the veteran provides sufficient identification and authorization. 3. Obtain the following VA treatment records: * Treatment or evaluation for hearing loss, specifically, audiology clinic evaluations conducted in January 2004 and March 2004, according to a May 2004 VA medical records "health summary," as well as any subsequent audiology evaluations and/or treatment; * All records of treatment for asthma from September 2002 to the present, which are not already on file, to specifically include treatment for the exacerbation, for which she received follow-up care on October 17, 2005. 4. Thereafter, schedule the veteran for a VA ENT examination to determine whether she has a current hearing loss disability which is related to service. The entire claims folder and a copy of this REMAND should be made available to the examiner prior to the examination. If the veteran has a current hearing loss disability, as defined in 38 C.F.R. § 3.385, the examiner should determine whether it is at least as likely as not that the current hearing loss is related to in-service noise exposure, and comment on the significance, if any, regarding differences shown on the in-service audiograms dated in March 1985 and in July 1989, particularly at the 6000 hertz level in the left ear. A complete medical rationale as to all findings and conclusions must be provided. 5. Schedule the veteran for a VA pulmonary examination to determine the current severity of her service-connected bronchial asthma. The entire claims folder and a copy of this REMAND should be made available to the examiner prior to the examination. All signs and symptoms necessary for rating the condition should be reported in detail, to include pulmonary function tests results. The complete rationale for all opinions expressed should be provided. 6. Then, after ensuring the VA examination reports are complete and that any actions needed to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), have been completed, the RO should readjudicate the claims, with consideration of all evidence of record. If any decision remains adverse to the veteran, she and her representative should be furnished a supplemental statement of the case, which addresses all relevant matters. An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to this Board for further appellate review, if in order. The appellant 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs