Citation Nr: 0812480 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 07-12 967 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Whether new and material evidence had been received to reopen the claim of service connection for bilateral hearing loss and, if so, entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from December 1951 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 RO rating decision. Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim, because the issues go to the Board's jurisdiction to reach and adjudicate the underlying claims de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first address whether new and material evidence has been presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The veteran testified before the undersigned Veterans Law Judge at the RO in September 2007. At the hearing the undersigned Veterans Law Judge granted a motion of the representative for advancement of the appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). At the Board hearing the veteran submitted additional evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. The claim of service connection for tinnitus is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. The evidence added to the record is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the veteran's claim of service connection for a hearing loss. 3. The currently demonstrated bilateral sensorineural hearing loss is shown as likely as not to be due to the exposure to acoustic trauma during the veteran's period of active service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 2. By extending the benefit of the doubt to the veteran, his bilateral sensorineural hearing loss disability is due disease or injury that was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5.107, 7104 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). To the extent that the action taken hereinbelow is fully favorable to the veteran, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal has been accomplished. II. Analysis of Petition to Reopen Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during a veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). The veteran submitted a claim of service connection for bilateral hearing loss in June 1999. The RO issued rating decisions in December 1999 and May 2001 that denied service connection for bilateral hearing loss. The veteran did not file a timely Notice of Disagreement. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The veteran filed a petition to reopen his claim for service connection for bilateral hearing loss in March 2005. Regarding petitions to reopen filed on or after August 29, 2001, as in this appeal, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The additional evidence recently associated with the file consists of an August 2005 VA examination, a March 2005 private physician examination, and his hearing testimony. This evidence is "new" in that it was not previously of record. The VA and his private physician's examination reports stated that the veteran had a diagnosis of bilateral hearing loss and therefore, the Board finds hat that the newly submitted evidence is material. The Board also notes that evidence received subsequent to a final decision is considered credible for the purpose of reopening the veteran's claim, unless it is inherently false or untrue, or is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, new and material evidence has been submitted to reopen the claim of service connection for bilateral hearing loss. In addition, the Board now finds the evidentiary record to be in relative equipoise in showing that the current bilateral sensorineural hearing loss disability is as likely as not due to the veteran's documented exposure to excessive noise levels during the Korean Conflict. By extending the benefit of the doubt to the veteran, service connection is warranted. ORDER As new and material evidence to reopen the claim of service connection for bilateral hearing loss has been received, the appeal to this extent is allowed. Service connection for a bilateral sensorineural hearing loss is granted. REMAND The veteran testified that, as a result of in-service noise exposure, he currently suffers from a hearing problems and tinnitus. During service, he reliably reports working in a generator room and serving in a 40 mm gun mount during combat. In addition, the August 2005 VA examination of the veteran stated he did not have tinnitus; however, he testified that he did currently have tinnitus that came and went. The Board notes that in McClain v. Nicholson the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (F.3d 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Accordingly, the RO should arrange for the veteran to undergo a VA examination in order to obtain definitive medical opinion as to whether the tinnitus is due to noise exposure or other event or incident of his service. The veteran is hereby advised that failure to report to the scheduled examination(s) may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the veteran and death of an immediate family member. To ensure that all due process requirements are met, in addition to affording the veteran a medical examination, the RO should also give the veteran opportunity to present any additional information and/or evidence pertinent to the claim on appeal that is not already of record. The RO's notice letter should explain that the veteran has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2005) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the veteran to submit all evidence in his possession that is not already of record, and ensure that its notice to the veteran meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). In addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, this remaining matter is hereby REMANDED to the RO for the following actions: 1. The RO should take appropriate steps to contact the veteran by letter and request that the veteran provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. The veteran also should be informed that he may submit evidence to support his claims. The RO's letter should invite the veteran to furnish all evidence in his possession, and identify what evidence is ultimately his responsibility to obtain. The RO should ensure that its letter meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, cited to above, as appropriate. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of the claimed tinnitus. The entire claims file must be made available to the examiner, and the examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on his review of the case, the VA examiner should opine as to whether it is at least as likely as not that the veteran has a current disability manifested by tinnitus that is due to an event or incident of his service, including the reported noise exposure therein. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues of service connection should be reviewed in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 41 (1992). 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