Citation Nr: 1007152 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-19 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for vertigo. 2. Whether new and material evidence to reopen a claim of service connection for bilateral hearing loss has been received. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant & K.H. ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran attended a hearing before the undersigned in October 2009. A transcript of that hearing has been associated with the Veteran's claims file. Since the last Supplemental Statement of the Case in May 2009, the Veteran has submitted new evidence relevant to his claim for service connection for bilateral hearing loss. At his October 2009 hearing, the Veteran waived RO consideration of this evidence. As such, the Board can make decision on this claim at this time. The issue of service connection for vertigo is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The unappealed September 1997 rating decision which denied the Veteran's claim of entitlement to service connection for bilateral hearing loss is final. 2. The Veteran submitted new evidence of a medical nexus between service and bilateral hearing loss, which is evidence related to an unestablished fact necessary to substantiate the claim. 3. The competent medical evidence shows that the Veteran's hearing loss is related to service. CONCLUSIONS OF LAW 1. New and material evidence pertinent to the claim of entitlement to service connection for bilateral hearing loss has been presented and the claim is reopened. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 2. Resolving the benefit of the doubt in the Veteran's favor, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.306, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009) 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Here, the Board is reopening the claim for service connection and granting service connection. Thus, no further discussion of the VCAA is required. New and Material Evidence A claim that has been denied, and not appealed, will not be reopened. See 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a). The exception to this rule provides that if new and material evidence is presented or secured with respect to the disallowed claim, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. "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. See 38 C.F.R. § 3.156. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claim was previously denied in September 1997 because there was no evidence of hearing loss in service or that hearing loss was related to service. Since that decision, evidence associated with the claims file includes a November 2009 opinion from a VA provider which links the Veteran's current hearing loss to service and opines that the Veteran did in fact experience hearing loss in service. This evidence was not previously submitted, and is therefore "new." As the evidence provides a medical nexus, a fact not previously established, it is considered "material." New and material evidence has therefore been submitted, and the claim for service connection for hearing loss is reopened. Here, the Board finds that development is complete and the Board can therefore make a decision on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection The Veteran seeks service connection for bilateral hearing loss. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance, and the appeal will be allowed. The Veteran has a current diagnosis of bilateral hearing loss, as reflected in private and VA medical records. His most recent diagnosis was in November 2009. The next question, therefore, is whether there is evidence of an inservice occurrence of an injury or disease. On entry into service in May 1968, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 15 5 0 5 0 During service, the Veteran was exposed to noise. He served in a flight kitchen, which was right next to the flight line. As a result, the Veteran was consistently exposed to the sound of jet engines. On discharge from service in January 1972, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 15 5 LEFT 35 25 10 20 15 Although no hearing loss was diagnosed on discharge, it is clear, when comparing the 1968 audiological examination to the 1972 audiological examination, that the Veteran's hearing underwent a change in service. The medical evidence, in the form of a November 2009 audiological opinion, also indicates that hearing loss occurred in service. That same opinion links the Veteran's service to his current bilateral hearing loss. The Veteran reported to the examiner that his hearing began to deteriorate in service and has only gotten worse since that time. The Veteran can attest to factual matters of which he had first-hand knowledge, such as noticing increased difficulty hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The examiner found that there was a strong correlation between the Veteran's service and his current bilateral hearing loss. He explained that the Veteran's hearing worsened in service, that the Veteran was exposed to noise in service, and that the Veteran's current hearing loss is more severe than would be normal in a person of his age. The Board finds that this opinion is credible evidence in favor of the Veteran's claim, as the examiner provided a detailed rationale for his opinion. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim; however, such development would not materially assist the Board in this determination. Under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for bilateral hearing loss will be granted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER New and material evidence having been submitted, the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. REMAND Unfortunately, a remand is required in this case as to the issue of service connection for vertigo. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2008). At the Veteran's October 2009 hearing, he stated that he began experiencing nausea, dizziness, being off balance, and headaches in service and has experienced these symptoms since service. He asserted that these symptoms were related to vertigo, which was diagnosed in November 2001. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. The Veteran is competent to report his symptoms, though he is not competent to attribute them to a diagnosis. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran's report of his symptoms merits a VA examination to determine whether vertigo is related to or began in service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed vertigo. The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed, including service treatment records, VA and private treatments records, and the statements of the Veteran. The examiner should conduct a complete history and physical and assign all relevant diagnoses. The examiner should offer an opinion as to whether vertigo at least as likely as not had its onset in service, is related to service, or was aggravated by service or a service-connected disability. The examiner should specifically comment on whether the Veteran's symptoms in service were the same as those that led to the diagnosis of vertigo in November 2001. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. All necessary diagnostic testing should be conducted and commented upon by the examiner. The examiner should acknowledge the Veteran's report of a continuity of symptomatology. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2009). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs