Citation Nr: 0812949 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-10 661 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a bilateral hearing loss disability; and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. D. Watson, Associate Counsel INTRODUCTION The veteran served on active duty in the Air Force from February 1962 to February 1970, with additional service in the Army National Guard from August 1982 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 RO decision, which, in pertinent part, reopened the veteran's claims for service connection for a bilateral hearing loss disability and a heart condition based on the submission of new and material evidence and denied them both on the merits. Subsequently, in February 2007, the RO granted the veteran's claim for service connection for a heart condition. Thus, the issue of service connection for a heart condition is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Regardless of the RO's decision to reopen the veteran's claim of service connection for a bilateral hearing loss disability, the Board is nevertheless required to address the issue of reopening to determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). The veteran testified at a Travel Board hearing before the undersigned in February 2008. A transcript has been associated with the file. Furthermore, following certification of the current appeal, additional evidence was received by the Board which was not considered by the RO. A waiver of RO consideration is of record, and the Board may proceed to decide the case. 38 C.F.R. § 20.1304. In April 2008, the Board granted a motion to advance the veteran's case on the docket due to financial hardship. See 38 U.S.C.A. § 7107; 38 C.F.R. § 20.900(c) (2007). The reopened claim of service connection for a bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. An unappealed RO decision dated in January 2003 originally denied the veteran's claim of service connection for a bilateral hearing loss disability. 2. Evidence received since the January 2003 RO decision is new and relates to an unestablished fact necessary to substantiate the veteran's claim for service connection for a bilateral hearing loss disability, and it is also so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The January 2003 RO decision, denying the claim of service connection for a bilateral hearing loss disability, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has been submitted for the claim of entitlement to service connection for a bilateral hearing loss disability; the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder, and has an obligation to provide reasons and bases supporting this decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) The veteran's petition to reopen his claim for service connection for a bilateral hearing loss disability has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & West Supp. 2006); 38 C.F.R. § 3.159 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Petition to Reopen the Claim of Service Connection for a Bilateral Hearing Loss Disability The veteran contends that he has submitted new and material evidence with respect to his claim for service connection for a bilateral hearing loss disability. The veteran's previous claim for service connection was denied in a January 2003 RO decision. The veteran did not appeal, and the January 2003 decision is thus final. 38 U.S.C.A. §§ 7104, 7105. However, for the reasons that follow, the Board concludes that new and material evidence has been submitted sufficient to reopen the veteran's claim for service connection for a bilateral hearing loss disability. Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "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. The 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106. In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The January 2003 RO decision denied the veteran's claim for service connection for a bilateral hearing loss disability on the grounds that the veteran did not present evidence that his hearing loss disability was related to service. Consequently, in order for the claim to be reopened, the veteran must provide some evidence that his current hearing loss disability is associated with service. The evidence submitted since the January 2003 RO decision includes various lay statements, private medical records, and a transcript of the veteran's Travel Board hearing. In particular, a March 2005 private medical opinion not only shows that the veteran has a current diagnosis of a hearing loss disability but also provides evidence indicating that the veteran's hearing loss disability is related to service. Given that the newly submitted evidence shows a current diagnosis and a link to service, the Board concludes that it raises a reasonable possibility that the claim would be substantiated, and therefore it constitutes new and material evidence in this case. The petition to reopen is granted. ORDER The petition to reopen the claim for service connection for a bilateral hearing loss disability is granted. REMAND Unfortunately, despite the Board's decision to grant the veteran's petition to reopen his claim for service connection for a bilateral hearing loss disability, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure due process is followed and that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The veteran contends that he first noticed hearing loss during ACDUTRA during his National Guard service in 1982. Multiple efforts were made to obtain all of the veteran's National Guard medical records. As the record currently stands, only the veteran's August 1982 enlistment examination is on file. This examination report does not reflect a hearing loss disability in either ear. Apparently, the first evidence of a hearing loss disability of the left ear is in 1989, and the first evidence of a hearing loss disability of the right ear is in 1996, several years after the veteran's release from the National Guard. There is nexus evidence on file which links the current bilateral hearing loss disability with noise exposure during National Guard service. See March 2005 private medical opinion. This opinion is not dispositive, however, as there is no indication that the examiner had access to all of the veteran's historical medical records when rendering his opinion. On remand, the veteran should be afforded a comprehensive VA audiological examination for purposes of determining the nature and etiology of a hearing loss disability of either ear. Accordingly, the case is REMANDED for the following action: 1. The veteran should be scheduled for a VA audiological examination for the purpose of determining whether he has a hearing loss disability of either ear that is attributable to service. The claims file and a copy of this remand must be made available to, and reviewed by, the examiner prior to the requested examination. The examiner should conduct all necessary tests, elicit historical information as to the veteran's noise exposure during and following service, and indicate in his report that the claims file was reviewed. The examiner should provide an opinion as to the date of onset and etiology of any current bilateral hearing loss for each ear. The examiner should then provide an opinion as to whether there is a 50 percent probability or greater (i.e., at least as likely as not) that any diagnosed hearing loss disability (of either ear) had its onset during active duty (February 1962 to February 1970) or within one year of such; OR had its onset or is otherwise related to his National Guard service (August 1982 to August 1983). A full rationale should be offered. In addition, the March 2005 private medical opinion finding that the veteran's hearing loss disability is related to National Guard service should be reviewed and reconciled. 2. After this development has been completed, the RO should then readjudicate the claim on the merits. If the benefit sought is not granted, the veteran should be furnished a supplemental statement of the case, which considers all the pertinent evidence of record, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs