Citation Nr: 1120932 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-43 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to August 1966, with additional service in the Navy Reserves and Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) from May 2008 and October 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the Veteran's previously denied claim for service connection for bilateral hearing loss. In an ensuing September 2009 statement of the case, the RO effectively reopened the claim and denied it on the merits. In April 2010, the Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge. The issue of entitlement to service connection for bilateral hearing loss is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. In an October 2002 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran did not timely appeal that decision. 2. The evidence received subsequent to the last final denial of the Veteran's hearing loss claim is new, and is also material because it raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The October 2002 rating decision that denied the Veteran's initial claim for service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2010). 2. New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In an October 2002 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran did not file a timely appeal of that decision. He subsequently submitted an application to reopen his service connection claim that was received at the RO in May 2005 and denied in a February 2006 rating decision. Again, the Veteran did not file a timely appeal. In April 2007, he made a second attempt to reopen his bilateral hearing loss claim. Thereafter, in May 2008 and October 2008 rating decisions, the RO declined to reopen that claim. However, in a September 2009 statement of the case, the RO effectively reopened the Veteran's claim and denied it on the merits. Nevertheless, because that claim was previously denied in a decision that became final in October 2003, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2010). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before the Board at the time of the initial October 2002 decision included treatment records from the Veteran's period of Navy Reserve service. Those records showed that, prior to entering the Reserves, he had been afforded an examination that had revealed disabling right ear hearing loss. Also of record at the time of the initial rating action were VA medical reports, showing that the Veteran had been diagnosed with right ear hearing loss in March 2000 and with less severe left ear hearing loss in August 2000. Additionally, those VA medical reports indicated that the Veteran had been prescribed hearing aids for his right ear only. Other evidence before the October 2002 RO adjudicators included a copy of an October 2001 VA medical examination report, which is no longer of record. Based on the above evidence, the RO determined that the Veteran's right ear hearing loss had preexisted his enlistment in the Navy Reserves and that neither that disorder nor his subsequently diagnosed left ear hearing loss was related to any of his periods of qualifying active service. Consequently, the Veteran's bilateral hearing loss claim was denied. In his first attempt to reopen his claim, the Veteran submitted copies of Navy Reserve and Air National Guard service medical records, which had not been previously been associated with his claims folder. Those records included reports of periodic examinations in which the Veteran had been assessed with bilateral hearing loss. Additionally, the Veteran submitted new VA medical records, showing that he was diagnosed with bilateral hearing loss and prescribed hearing aids for both ears. He also provided a written summary of his noise exposure during active duty and in his subsequent periods of Navy Reserve and Air National Guard service. In a February 2006 rating decision, the RO determined that, while Veteran had submitted clinical and lay evidence that was new, it was not material because it did not show a nexus between his current disability and one or more of his periods of qualifying active service. Accordingly, the RO declined to reopen the Veteran's previously denied claim. In support of his most recent application to reopen his claim, the Veteran has submitted a report of his August 1966 service separation examination, which was not previously of record. That report shows that, prior to leaving active duty, the Veteran scored 15/15 on a whisper voice test, which was considered normal, but was not afforded an audiogram. The Veteran's separation examination report is the only service medical record that has been associated with his claims folder. The RO attempted to obtain the Veteran's other service medical records, but was informed by the National Personnel Records Center (NPRC) in December 2007 that those records were unavailable. Other evidence submitted in connection with the Veteran's most recent claim includes VA medical records, showing that he has continued to receive treatment for bilateral hearing loss. The Veteran has also presented testimony at an April 2010 Travel Board hearing, asserting that his bilateral hearing loss was caused by in-service acoustic trauma and permanently aggravated by noise exposure incurred during weekend drills and active duty training exercises in the Navy Reserves and Air National Guard. In his testimony, the Veteran further contended that his hearing loss had progressively worsened since his initial period of active duty and has required the use of prescription hearing aids for more than a decade. The Board observes that the Veteran is competent to state that he was exposed to loud noises while on active duty and during his subsequent periods of Navy Reserve and Air National Guard service. 38 C.F.R. § 3.303(a), 3.159(a) (2010); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). He is also competent to a report a history of hearing problems, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994); Hensley v. Brown, 5 Vet. App. 155 (1993). Moreover, the Veteran's lay statements are presumed credible for the purpose of determining whether they are new and material. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board finds that the Veteran's recent Travel Board testimony, combined with the newly received service separation examination report and the post-service clinical records, are both new and material. That newly submitted lay and clinical evidence tends to corroborate the Veteran's contentions that his hearing loss began during active duty and was aggravated beyond its natural progression during subsequent periods of qualifying active service in the Navy Reserves and Air National Guard. Moreover, that new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating that claim. 38 C.F.R. § 3.303 (2010). Specifically, that new evidence suggests that Veteran may have developed noise-induced hearing loss in service, which went undiagnosed in the absence of a separation audiogram and progressively worsened over time. Moreover, that newly submitted evidence suggests the Veteran's hearing loss may have been permanently aggravated during one or more of his subsequent periods of active duty training and inactive duty training in the Navy Reserves and Air National Guard. That evidentiary showing effectively supports an alternate theory of entitlement to service connection that was not previously considered by VA adjudicators. Robinson v. Mansfield, 557 F.3d 1355 (Fed. Cir. 2009). Further, that new evidence is presumed credible for the purpose of determining whether it is material to the Veteran's claim. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Here, the new evidence submitted in support of the Veteran's claim relates to previously unestablished facts, which tend to show that his currently diagnosed bilateral hearing loss is etiologically related to one or more of his periods of qualifying active service in the Navy, Navy Reserves, and Air National Guard. Therefore, the Board finds that new evidence, when presumed credible for the purpose of determining whether it is material, is material. Accordingly, the Veteran's claim is considered reopened. To that extent only, the appeal is allowed. ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss. To that extent only, the appeal is allowed. REMAND Although the Board regrets the delay, additional development is needed prior to the disposition of the Veteran's newly reopened claim. At the outset, the Board notes that impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; when the thresholds for at least three of these frequencies are 26 decibels; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2010). The Board also notes that an examination for hearing loss must be conducted by a state-licensed audiologist and must include both a pure tone audiometry test and controlled speech discrimination (Maryland CNC) test. 38 C.F.R. § 4.85 (2010). Additionally, the Board observes that active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2010). Active duty training includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2010). Inactive duty training is defined as duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2010). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while per-forming active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). The definition of active duty also includes any periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6 (2010). However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Veteran, in written statements and testimony before the Board, contends that his bilateral hearing loss had its onset during his initial period of active service, when he was exposed to "loud, high-pitched drilling noises" in his military occupational specialty as a dental technician and to live weapons fire during Navy training exercises. Additionally, the Veteran asserts that his hearing loss was aggravated by the acoustic trauma he subsequently incurred while performing weekend drills in the Navy Reserve and serving as an inventory specialist "on the flight line" in the Air National Guard. The Veteran concedes that he was given ear plugs during his periods of Navy Reserve and Air National Guard duty, but maintains that he did not always have access to hearing protection in the course of his duties. The Veteran is competent to state that he experienced noise exposure in service. Layno v. Brown, 6 Vet. App. 465 (1994); Hensley v. Brown, 5 Vet. App. 155 (1993). Additionally, the Board considers the Veteran's account to be credible as it is corroborated by his service personnel records, which show that he served as a dental technician while on active duty and subsequently worked around aircraft and other heavy equipment in the Navy Reserve and Air National Guard. Moreover, there is no competent evidence of record to indicate that the claimed noise exposure did not occur. Accordingly, the Board concludes that it is likely that the Veteran was exposed to acoustic trauma on active duty. His exposure to acoustic trauma supports his contention that his hearing loss is service-related. However, in order to establish service connection, the evidence still needs to show a nexus linking any current disability to the in-service injury. The Veteran's claims folder does not contain any of his active duty service medical records, apart from his August 1966 service separation examination report. That report shows that, prior to his discharge from the Navy, the Veteran was assessed with normal hearing based on a score of 15/15 on a whisper voice test. However, he was not afforded a contemporaneous audiological evaluation, which is considered a more reliable indicator of hearing difficulties. The record thereafter shows that, on examination in August 1980 prior to his entry into the Navy Reserves, the Veteran underwent an audiological examination, which revealed hearing loss that qualified as disabling in the right ear only. 38 C.F.R. § 3.385 (2010). HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 30 25 55 LEFT 15 5 5 25 30 The Veteran's hearing test results did not render him unfit for duty, but did result in his placement on a disability profile, which restricted him from assignments to high noise areas. Accordingly, the Board finds that the presumption of soundness is rebutted with respect to the Veteran's right ear hearing loss and VA must consider whether that condition was permanently aggravated as a result of any aspect of his qualifying active service in the Navy Reserves and Air National Guard. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). Subsequent Navy Reserve and Air Guard medical records contain diagnostic assessments of bilateral hearing loss. Additionally, the Veteran's VA medical records show that, prior to leaving the Navy Reserves in 2005, he sought treatment for hearing problems and was fitted with hearing aids. The record thereafter shows that the Veteran has continued to receive treatment for bilateral hearing loss on a routine basis. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). In this case, the Veteran has not yet been afforded a VA examination in support of his newly reopened claim. In light of the aforementioned evidence, it remains unclear whether his current bilateral hearing loss was caused or aggravated by any aspect of his active duty, including his reported exposure to loud noises while working as a dental technician and participating in field training exercises. Additionally, it remains unclear whether the right ear hearing loss, noted at the time of the Veteran's August 1980 examination, was permanently worsened as a result of one or more subsequent periods of qualifying active service in the Navy Reserves and Air National Guard, or whether his left ear hearing loss is etiologically related to any such period of service. Accordingly, the Board finds that a remand for a VA examination and opinion addressing the etiology of the Veteran's right and left ear hearing loss is necessary in order to fully and fairly address the merits of his claim. That VA examination and opinion should include a review of all pertinent evidence in the Veteran's claims folder. 38 C.F.R. § 4.1 (2010). Next, the Board recognizes that, in April 2007, the RO requested the Veteran's complete service medical records corresponding to his period of active duty from June 1963 to August 1966. However, a response from the NPRC indicated that no such records were available apart from the Veteran's August 2006 service separation examination report. Thereafter, the RO contacted the Veteran and requested that he submit all active duty service medical records in his possession. The Veteran did not respond to that request and the RO subsequently issued a May 2008 formal decision finding that no additional service medical records were available. In light of the foregoing, the Board concludes that exhaustive efforts to obtain the Veteran's active duty service medical records have been made and that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(1) (2010). Nevertheless, the Board finds it necessary to remand for additional records development on other grounds. Specifically, the Board finds that the RO should attempt to obtain a copy of the October 2001 VA examination report, which was referenced in the initial October 2002 adjudication and appears to have contained pertinent evidence with respect to the Veteran's hearing loss claim. That VA examination report is no longer associated with the Veteran's claims folder and it does not appear that efforts to locate it have been made. Accordingly, such efforts should be made on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Board observes that, while the Veteran indicated at his April 2010 Travel Board hearing that he was receiving periodic audiological treatment at his local VA Medical Center, no records dated since May 2009 have yet been associated with the claims folder. As it appears that subsequent VA medical records may exist that are pertinent to the Veteran's claim, those records should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED to the RO for the following actions: 1. Obtain and associate with the claims folder a copy of the report of an October 2001 VA examination, which was conducted at the Cheyenne VA Medical Center and referenced in the initial October 2002 RO adjudication of the Veteran's bilateral hearing loss claim. 2. Obtain and associate with the claims folder copies of the Veteran's medical records from the Cheyenne VA Medical Center dated since May 2009. 3. After the above development has been completed, schedule the Veteran for a VA examination to ascertain the etiology of any current hearing loss. The claims folder should be reviewed by the examiner and the examination report should note that review. All appropriate tests, including an audiological evaluation, should be conducted. The examiner should provide a rationale for any opinion expressed and reconcile it with all pertinent evidence of record, including the Veteran's assertions of acoustic trauma, incurred while serving as a dental technician and performing live weapons training exercises in the Navy, and his account of subsequent exposure to aircraft, heavy equipment, and weapons noise during periods of qualifying active service in the Navy Reserve and Air National Guard. Additionally, the examiner should consider the Veteran's service personnel records, confirming his military occupational specialty as a dental technician and subsequent periods of active duty training and weekend drills in the Navy Reserves and Air National Guard; his October 1966 service separation examination report, showing that he scored a 15/15 on a whisper voice test but was not afforded an audiogram; and his Navy Reserve and Air Service Guard medical records, showing disabling right ear hearing loss on entry and subsequent diagnostic assessments of bilateral hearing loss. The examiner should also consider the Veteran's VA medical records, showing that he has been fitted with hearing aids since 2000 and currently receives periodic treatment for bilateral hearing loss. Finally, the examiner should consider the Veteran's assertions regarding a continuity of hearing loss symptoms since service and the aggravation of those symptoms in the Navy Reserves and Air National Guard. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the VA examiner's opinion should address the following: a) State whether it is at least as likely as not (50 percent or greater probability) that any current bilateral hearing loss was caused or aggravated by the Veteran's reported in-service noise exposure from dental equipment and live weapons fire. b) State whether it is at least as likely as not (50 percent or greater probability) that any current bilateral hearing loss was caused or aggravated by any other aspect of the Veteran's period of active duty in the Navy. c) State whether it is at least as likely as not (50 percent or greater probability) that any preexisting right ear hearing loss was aggravated or permanently worsened by acoustic trauma that the Veteran incurred during weekend drills in the Navy Reserve and while serving as an inventory specialist "on the flight line" in the Air National Guard. d) State whether it is at least as likely as not (50 percent or greater probability) that any preexisting right ear hearing loss was otherwise aggravated or permanently worsened during one or more periods of active duty training or inactive duty training in the Navy Reserve and Air National Guard. e) State whether it is at least as likely as not (50 percent or greater probability) that any left ear hearing loss was caused or aggravated by acoustic trauma that the Veteran incurred during weekend drills in the Navy Reserve and while serving as an inventory specialist "on the flight line" in the Air National Guard. f) State whether it is at least as likely as not (50 percent or greater probability) that any left ear hearing loss was otherwise caused or aggravated by one or more periods of active duty training or inactive duty training in the Navy Reserve and Air National Guard. 4. Then, readjudicate the claim. If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs