Citation Nr: 1002840 Decision Date: 01/19/10 Archive Date: 02/01/10 DOCKET NO. 06-32 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for status post resection for gastric bleed. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing conducted at the local RO in February 2007. The issues on appeal were previously before the Board in August 2007 when they were remanded for additional evidentiary development The issue of entitlement to service connection for status post resection for gastric bleed along with the reopened claims of entitlement to service connection for hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will inform the Veteran if any further action is required on his part. FINDINGS OF FACT 1. A February 1990 Board decision denied service connection for bilateral hearing loss and tinnitus; the Veteran did not appeal the decision which is final. 2. The evidence received subsequent to the February 1990 Board decision is not duplicative of evidence previously submitted and the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The February 1990 Board decision denying service connection for hearing loss and tinnitus is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2009). 2. The evidence received since the February 1990 Board decision denying service connection for hearing loss and tinnitus is new and material; accordingly, the claims of entitlement to service connection for hearing loss and tinnitus are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations for the disabilities adjudicated by this decision via the discussions in October 2003 and August 2007 VCAA letters. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notice required by VCAA and implementing regulations was furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's decisions came before complete notification of the appellant's rights under the VCAA. It is arguable that the VCAA notice was not timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds, however, that any defect with respect to the timing of the VCAA notice in this case was harmless error for the reasons specified below. Subsequent to the rating decisions on appeal, the RO did provide notice to the claimant regarding what information and evidence was needed to substantiate the claims and the Veteran has had the chance to submit evidence in response to the VCAA letters. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on the claims decided herein have been accomplished and that adjudication of the claims, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See Dingess/Hartman, supra. In the present appeal, the appellant was provided with notice of what types of information and evidence were needed to substantiate his claims in the October 2003 and August 2007 VCAA letters and he was also provided with notice of the types of evidence necessary to establish an effective date or a disability evaluation for the issues on appeal by the August 2007 VCAA letter. In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided with notification which complies with Kent via the August 2007 VCAA letter. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the new law and regulation. The Veteran's claims pertaining to hearing loss and tinnitus are being reopened and the Veteran is being scheduled for VA examinations in the remand portion of the decision below. There is no prejudice flowing to the Veteran from the Board's current decision to reopen the claims of entitlement to service connection for hearing loss and tinnitus and to remand for additional evidentiary development. The Board finds that the requirements of 38 C.F.R. § 3.159(c)(4) have been met. No additional pertinent evidence has been identified by the appellant as relevant to the issues on appeal which are adjudicated by this decision. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss and tinnitus. There were no complaints of, diagnosis of or treatment for hearing loss or tinnitus in the service treatment records. Whispered voice testing conducted at the time of the April 1965 separation examination was determined to be 15/15. A November 1988 statement from a private physician reveals the Veteran sought treatment the same month for problems with hearing. A pure tone audiogram was referenced as revealing 70 decibel losses at 3,000, 4,000 and 6,000 cycles per second. Discrimination was 76 percent on the left and 68 percent on the right. The physician found the Veteran had hearing loss which he opined was due to noise exposure. A private clinical record dated in December 1988 indicates the Veteran had been examined and shown to have a progressive high frequency loss in both ears. He reported his hearing decreased for a few days after firing his weapon on the range in spite of hearing protection. In December 1988, the Veteran submitted a claim of entitlement to service connection for hearing loss. He alleged that the hearing loss occurred in September or October of 1962. He was firing a machine gun which malfunctioned and exploded. He did not have ear protection. On the authorized audiological evaluation in March 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 80 Not reported 85 80 LEFT 5 65 Not reported 65 70 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 88 percent in the left ear. The remarks were high frequency hearing loss right greater than left. The Veteran reported bilateral tinnitus right greater than left. By rating decision dated in April 1989, the RO denied service connection for hearing loss and tinnitus. The RO determined that the service treatment records were negative for complaints, findings, treatment or diagnosis for hearing loss, acoustic trauma or head trauma. At the time of the separation examination the Veteran's hearing was normal as tested by the whispered voice test. The RO also found that sensorineural hearing loss was not present to a compensable degree within one year of discharge from service. The Veteran was informed of the decision and of his procedural an appellate rights via correspondence dated in May 1989. The Veteran appealed the April 1989 rating decision to the Board. In February 1990, the Board affirmed the RO's denial of service connection for hearing loss and tinnitus. The Board found that hearing loss and tinnitus were not shown during service or for many years thereafter. The Veteran did not appeal the decision. The February 1990 Board decision deny service connection for hearing loss and tinnitus is final. In July 2003, the Veteran submitted a statement which has been construed by the RO as an attempt to reopen the claims of entitlement to service connection for hearing loss and tinnitus. Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted during active duty, or for aggravation of a preexisting injury suffered or disease contracted within the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether an appellant has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Under pertinent law and VA regulations, VA may reopen and review a claim that has been previously denied if new and material evidence is received since the last final decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Evans v. West, 12 Vet. App. 22 (1998). The definition of "new and material evidence" as set forth in 38 C.F.R. § 3.156(a) was revised, effective August 29, 2001. This new regulation provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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. 66 Fed. Reg. 45630 (2001) (codified as amended at 38 C.F.R. § 3.156(a)). This latest definition of new and material evidence only applies to a claim to reopen a finally decided claim received by the VA on or after August 29, 2001. Id. As the appellant in this case filed an application to reopen claims for service connection for hearing loss and tinnitus in July 2003, the revised version of § 3.156 is applicable in this appeal. Furthermore, for purposes of the "new and material" evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The pertinent evidence received subsequent to the February 1990 Board decision which denied service connection for hearing loss and tinnitus consists of statements and testimony from the Veteran, private medical records, and a buddy statement. A private clinical record dated in June 1989 indicates the Veteran reported he had problems with his hearing which was injured in 1962 while he was in the Marines. He reported that a machine gun malfunctioned, blowing him and an assistant gunner off the gun. The pertinent assessment was history of definite hearing loss. This evidence is not new and material. The fact that the veteran was alleging he experienced hearing loss due to an incident during active duty and that he currently experiences hearing loss was of record at the time of the February 1990 Board decision. A buddy statement was received in July 2003. The author wrote that he was present when a machine gun the Veteran was firing exploded. The author indicated that the Veteran could never hear well again and that he said he had a loud ringing in his ears which drowned out other sounds. This evidence is new and material. It is new as it was not of record at the time of the prior final decision. It is material in that it provides some objective evidence that the Veteran was involved in an in-service accident which reportedly injured his ears. The Veteran testified before the undersigned in February 2007 that he experienced hearing loss in his right ear after a machine gun he was firing malfunctioned and exploded. He reported he was informed by a Navy physician that he had damaged his right ear drum and nerve endings. This evidence is not new and material. It is duplicative of assertions the Veteran made which were previously of record. A private clinical record dated in April 2007 includes pertinent assessments of hearing loss, not otherwise specified, and tinnitus, not otherwise specified. It was written that the above problems were service related per a convincing history and documentation. This evidence is new and material. It was not of record at the time of the prior final Board decision. It is material in that it provides some medical evidence of a link between currently existing hearing loss and tinnitus and the Veteran's active duty service. The Board finds the July 2003 buddy statement and the April 2007 private clinical record meet the definition for new and material evidence. The evidence is not duplicative of evidence previously submitted and the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. As new and material has been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus have been reopened. The Board finds that, prior to de novo adjudication of the claims, additional evidentiary development is required. That development is addressed in the remand portion of this decision. ORDER New and material evidence having been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus have been reopened. The appeals are granted to that extent only. REMAND The issues on appeal were previously before the Board in August 2007 when they were remanded for additional evidentiary development. The RO was directed, in part, to attempt to secure any outstanding service treatment records through official channels including solicitation of treatment records from Camp Pendleton Naval Hospital, Camp Pendleton, California, and solicitation of the medical records from the Veteran's reserve duty following his separation from active military service, including at Camp Geiger, co-located with Camp LeJeune in Camp LeJeune, North Carolina. The RO was also directed to attempt to obtain records of treatment at the Naval Station in Adak, Alaska. The RO was directed that all efforts to obtain additional service treatment records and the results of these efforts should be documented in the claims file. The Board's review of the claims file does not indicate that the August 2007 remand instructions were complied with. In April 2008, the RO attempted to obtain records via the Personnel Information Exchange System (PIES). The response received was that the service treatment records were sent previously in February 1989. A request for the Veteran's service treatment records was sent to the Commandant of the Marine Corps who replied that the request should have been made through the PIES system. Significantly, there is no indication that attempts were made to obtain the requested records directly. There is no indication that the Camp Pendleton Naval Hospital was contacted nor any indication that attempts were made to obtain the records from the naval station located in Adak, Alaska. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. The Veteran has claimed entitlement to service connection for status post gastric resection for bleeding ulcers. Associated with the claims file is a January 1965 service treatment record which documents that the Veteran complained of recurrent cramping and upper abdominal pains which had been present for the past two years. The impression was question functional gastrointestinal disorder. There is evidence of record which documents that the Veteran underwent surgery to treat a gastrointestinal disorder. The Veteran has alleged that the in-service gastrointestinal complaint represented symptomatology which was the precursor to the ulcer which eventually was treated with gastric resection. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim of entitlement to service connection, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests 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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination with respect to his gastrointestinal claim. The Board finds there is competent evidence of the current residuals of a gastrointestinal disorder, evidence of complaints of a gastrointestinal disorder during active duty and the Veteran's allegation of continuity of symptomatology. Based on this, the Board finds the Veteran must be provided with a VA examination to determine the nature, extent and etiology of his claimed gastrointestinal disorder and residuals. As set out above, the Board has reopened the claims of entitlement to service connection for hearing loss and tinnitus. The Veteran has not been provided with VA examinations to determine the etiology of these disorders. Associated with the claims file is competent evidence of the current existence of hearing loss in the form of March 1989 VA audio examination, annotations as to the presence of tinnitus which is also included in the report of the March 1989 audio examination, some evidence of in-service acoustic trauma based on the Veteran's statement and the buddy statement and allegations of continuity of symptomatology from the time of the accident to the present. The Board notes the Veteran is competent to report his experienced hearing loss and tinnitus. Based on this fact pattern, the Board finds the Veteran should be afforded VA examinations to determine the extent and etiology of any hearing loss and/or tinnitus found on examination. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the veteran for gastrointestinal disorders, hearing loss and/or tinnitus since August 2007. After securing any necessary releases, obtain the records identified by the Veteran to the extent possible. Regardless of the Veteran's response, obtain all outstanding VA medical records. 2. Make another attempt to secure any outstanding service treatment records through official channels. This should include solicitation of treatment records from Camp Pendleton Naval Hospital, Camp Pendleton, California, and solicitation of the medical records from the veteran's reserve duty following his separation from active military service, including at Camp Geiger, co-located with Camp LeJeune in Camp LeJeune, North Carolina. Attempts to obtain records of treatment at the Naval Station in Adak, Alaska, should also be undertaken. All efforts to obtain additional service treatment records and the results of these efforts must be documented in the claims file. 3. Schedule the Veteran for a VA examination by a suitably qualified health care professional to determine the nature, extent and etiology of the status post gastric resection for bleeding ulcer. The Veteran's claims folder should be made available to and pertinent documents therein reviewed by the examiner. The examination report should reflect that such a review was conducted. Any indicated studies or tests should be accomplished. All clinical findings should be reported in detail. The examiner should provide an opinion, based upon review of the all of the Veteran's pertinent medical history and with consideration of sound medical principles, as to whether it is at least as likely as not (a 50% or better probability) that the status post gastric resection for bleeding ulcer or the underlying pathology was manifested during or otherwise caused by the Veteran's active duty service. The examiner must explain the medical rationale for any conclusions and discuss relevant service treatment records, service personnel records, and post- service medical records as well as any other relevant evidence of record including lay statements and the Veteran's post-service history. If any opinion cannot be provided without resort to speculation, the examiner should so state. The examiner should be informed that 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 that conclusion as it is to find against it. 4. Schedule the Veteran for a VA examination by a suitably qualified health care professional to determine the nature, extent and etiology of any hearing loss and/or tinnitus found on examination. The Veteran's claims folder should be made available to and pertinent documents therein reviewed by the examiner. The examination report should reflect that such a review was conducted. Any indicated studies or tests should be accomplished. All clinical findings should be reported in detail. If hearing loss and/or tinnitus is diagnosed, the examiner should provide an opinion, based upon review of the all of the Veteran's pertinent medical history and with consideration of sound medical principles, as to whether it is at least as likely as not (a 50% or better probability) that such disability or disabilities was or were manifested during or otherwise caused by the Veteran's active duty service. The examiner must explain the medical rationale for any conclusions and discuss relevant service treatment records, service personnel records, and post- service medical records as well as any other relevant evidence of record including the lay statements and the Veteran's post-service history. In doing so, the examiner must discuss any pertinent in-service reports of noise exposure. The examiner should also address the 1988 private clinical record which indicates the hearing loss was progressive in nature. If any opinion cannot be provided without resort to speculation, the examiner should so state. The examiner should be informed that 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 that conclusion as it is to find against it. 5. Readjudicate the appeal. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, the claim(s) should be returned to the Board for further appellate review, if in order. The appellant and his representative have 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. 2009). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs