Citation Nr: 1301894 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-42 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for right ear hearing loss and, if so, whether service connection is warranted. 2. Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from March 1974 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO, in pertinent part, reopened the claim for service connection for bilateral hearing loss, because it was determined there was new and material evidence, but then ultimately denied this claim on its underlying merits (i.e., on a de novo basis). In October 2009, the RO granted service connection for left ear hearing loss and assigned a noncompensable rating, effective in February 2008. Regarding the RO's decision to reopen the claim for right ear hearing loss, so, too, must the Board make this threshold preliminary determination of whether there is new and material evidence concerning this claim, irrespective of what the RO determined, because this initial determination affects the Board's jurisdiction to proceed further and adjudicate this claim on its underlying merits. If there is not new and material evidence concerning this claim that is where the analysis must end, regardless of what the RO concluded, because further Board analysis of this claim is neither required nor permitted. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92 (March 4, 1992). Conversely, if there is new and material evidence, the Board must reopen this claim, like the RO did, and review its former disposition. 38 U.S.C.A. § 5108 (West 2002). For reasons and bases that will be discussed, the Board disagrees with the RO's determination that there is new and material evidence to reopen the claim for right ear hearing loss. In September 2011, the Veteran submitted a Veterans Supplemental Claim for Compensation form, which included a claim for service connection for diabetes mellitus. Reviewing the claims file as well as Virtual VA, it does not appear that the RO has responded. The Board does not have jurisdiction over this claim, and it is referred to the RO for appropriate action. The issue of entitlement to a higher initial rating for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed September 1998 decision, the RO initially considered and denied his claim for service connection for bilateral hearing loss, which he alleged was the result of repeated exposure to loud noise during his military service; in denying this claim, however, the RO noted that the results of audiometric testing established that he had pre-existing hearing loss that was not aggravated by his military service. 2. The additional evidence received or otherwise obtained since that September 1998 rating decision is cumulative or redundant of evidence already considered in that decision or does not raise a reasonable possibility of substantiating this claim. CONCLUSION OF LAW The RO's September 1998 decision initially considering and denying his claim for service connection for right ear hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must both notify a claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. To satisfy this requirement, VA adjudicators are required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial. VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). Here, a letter was sent in April 2008, prior to initially adjudicating the Veteran's claims in the September 2008 decision at issue, so in the preferred sequence. The letter complied with the holding in Kent v. Nicholson, 20 Vet App 1 (2006), in that it included discussion of the requirements for reopening a previously denied and unappealed claim, contained information concerning specifically why the claim was previously denied, and cited the criteria for establishing his underlying entitlement to service connection. So he has received all required VCAA notice, and there is no pleading or contention that he has not. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice errors, even if shown to exist, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of the claim). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the outstanding issue has been whether there is new and material evidence to reopen the Veteran's claim for a right ear hearing loss. In this regard, the Veteran's claim was last denied in a September 1998 rating decision because it was found that the Veteran's right ear hearing loss was a pre-existing disability, which was not permanently aggravated in service beyond its natural progression. Accordingly, in order to reopen the claim, there must be new evidence supporting in-service aggravation of the Veteran's pre-existing hearing loss. The Board realizes that the Veteran was not told directly by the undersigned VLJ that he needed to submit evidence showing in-service incurrence or aggravation of his right ear hearing disability. See id. at 497 (holding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining that these issues were material to substantiating the claim). However, at the hearing, the undersigned asked questions pertaining to this issue. He was asked questions regarding his current disability including whether post-service treatment records were associated with the claims file. Further, the Veteran argued that he was exposed to high levels of noise during his service career. Moreover, as discussed below, the fact that the Veteran underwent VA examination to obtain a medical nexus opinion, shows that the Veteran was aware of the type of evidence that may have been overlooked, namely a competent medical opinion linking his current disability to service. It should be pointed out that VA is not obligated to schedule him for an examination for a medical nexus opinion unless and until there is new and material evidence to reopen this claim. 38 C.F.R. § 3.159(c)(4)(iii). The Veteran did not raise any new issues pertaining to his petition to reopen at the hearing. Thus, the Board finds that the Veteran has not been prejudiced by any deficiencies with respect to the VLJ's duty to suggest evidence that may have been overlooked. In Bryant, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the appellant had any additional information to submit. Similarly, VA also has satisfied its duty to assist him with this claim by obtaining all potentially relevant evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all records that he and his representative identified as possibly pertinent to the claim. As noted, he also had VA compensation examination, that included a request for a medical nexus opinion concerning the etiology of his hearing loss, especially in terms of whether it was aggravated by his military service, such as on account of his noise exposure in service, which he cites as sources of concern. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). The Veteran therefore has received all required notice and assistance concerning the claim that is being adjudicated in this decision. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Whether there is New and Material Evidence to Reopen the Claim of Entitlement to Service Connection for Right Ear Hearing Loss Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) A medical diagnosis of a current disability; (2) medical or, in certain cases, 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. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third Caluza elements discussed above. Savage, 10 Vet. App. at 495-496. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d) (2012); Combee, 34 F.3d at 1043 (Fed. Cir. 1994). Some chronic diseases such as sensorineural hearing loss are presumed to have been incurred in or aggravated by service, although not otherwise established as such, generally if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1) (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). According to VA standards, impaired hearing must be at a certain level of severity to be considered an actual ratable disability. Namely, according to VA regulation, hearing loss only will be considered to be a ratable 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 these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The RO first considered and denied this claim in September 1998. At the time, the evidence included the Veteran's service treatment records (STRs). He had had a hearing evaluation in March 1974 in anticipation of his enlistment into the military. The audiogram revealed puretone thresholds in his right ear at 500, 1000, 2000, and 4000 Hz of 25, 15, 35, and 15 decibels, respectively. The diagnosis was bilateral hearing loss. So there was evidence of right ear hearing loss at the frequencies 500 and 2000 Hz. See Hensley, id. The record also included a June 1976 examination report. The puretone thresholds in the right ear at 500, 1000, 2000, 3,000, and 4000 Hz were 10, 15, 35, 20, and 15 decibels, respectively. There was evidence of right ear hearing loss at the frequency of 2000 Hz. In September 1976, he was evaluated for hearing loss. There was high frequency right ear hearing loss of 40 decibels at the frequency of 2000 Hz. In December 1976, there was high frequency right ear hearing loss of 40 decibels at the frequency of 2000 Hz. The March 1977 examination that was conducted prior to his separation show puretone thresholds in the right ear at 500, 1000, 2000, 3,000, and 4000 Hz were 15, 20, 40, 25, and 20 decibels, respectively. There was evidence of right ear hearing loss at the frequencies 2000 and 3000 Hz. The record also includes a January 1995 private clinical report with an audiogram showing puretone thresholds in the right ear at 500, 1000, 2000, 3,000, and 4000 Hz were 10, 20, 40, 30, and 60 decibels, respectively. In this regard, the Board notes that the private audiological evaluation did not break down the puretone thresholds but included only a graphical representation of such data. However, the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear. See Kelly v. Brown, 7 Vet. App. 471 (1995). When denying the claim in September 1998, the RO determined he had pre-existing hearing loss that was not aggravated by his military service. The RO appropriately notified him of that September 1998 decision, including apprising him of his procedural and appellate rights in the event he elected to appeal, but he did not. That decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. The Board has considered the potential applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Here, though, this regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of that earlier appeal period, that is, during the one-year period following the September 1998 decision initially considering and denying the claim. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999). He filed his current petition to reopen this claim on February 26, 2008. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" 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. New and material evidence cannot be cumulative or 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. See 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The RO's September 1998 decision therefore marks the starting point for determining whether there is new and material evidence to reopen this claim because that was the last final and binding denial of this claim. Evans v. Brown, 9 Vet. App. 273 (1996) (indicating the evidence to be considered when making this new-and-material determination is that added to the record since the last final and binding disallowance of the claim, regardless of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). The additional evidence since submitted includes his statements, private treatment records and a VA examination report which includes a medical nexus opinion. In regards to his written statements, he has merely continued to argue that he has a right ear hearing loss attributable to his military service. He made this same allegation before the RO initially considered and denied this claim in September 1998. So, even when initially considering and denying this claim in September 1998, there was recognition and acknowledgment of his personal belief that he has a right ear hearing disability and that it is a result of his military service. Thus, merely reiterating this allegation is not new evidence. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decisionmaker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Also since that September 1998 decision, private treatment records have been added to the file, but none are material to the claim in terms of attributing his right ear hearing loss to his military service. The private medical records that pertain to hearing loss merely confirm the fact that he has hearing loss, a fact which was known at the time of the prior final rating decision. Merely submitting additional medical records of this sort does not address the more determinative issues of causation of this current disability in terms of any potential relationship or correlation with his military service. See Cox v. Brown, 5 Vet. App. 95 (1993) and Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are immaterial to the issue of service connection and are insufficient to reopen a claim for service connection based on new and material evidence). There still has to be some indication he has a right ear hearing disorder as a consequence of in service noise exposure. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Bolding and italics added for emphasis In this regard, the new evidence also includes an August 2009 VA examination report. Significantly, however, this VA audiologist, found that the pre-existing right ear hearing loss was not aggravated by his military (although this examiner found that his left ear hearing loss was aggravated by military service). He has failed to submit any additional clinical records that might otherwise substantiate that he has a right ear hearing loss that was incurred in or aggravated by service. Without such crucial evidence, his petition to reopen his claim for service connection for right ear hearing loss cannot succeed. "[T]he determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material." See Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." There is not this required indication in this particular instance, however, since the Veteran already has received the assistance of a VA compensation examination that provides a negative opinion. In sum, none of the additional evidence since the prior final and binding decision in September 1998 contradicts the element of service connection that was missing in that prior denial of the claim-i.e., proof of aggravation. Thus, there is no new and material evidence to reopen this claim for service connection for right ear hearing loss, and the petition must be denied. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER In the absence of new and material evidence, the petition to reopen the claim for service connection for right ear hearing loss is denied. REMAND The Veteran also claims that a compensable evaluation is warranted for the service connected left ear hearing loss. A VA examination was conducted in August 2009. The Veteran reported his symptoms at his videoconference, but he also indicated that his left ear hearing loss had not increased in severity since the 2009 examination. Regardless, the Board finds that a current examination should be conducted given that over three and a half years have passed since the most recent VA compensation examination. The evidence has become stale, at least as it pertains to the current level of disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating) and Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to update the list of the doctors and health care facilities that have treated him for his left ear hearing loss. Obtain these additional medical treatment records (those not already on file). The aid of the Veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. If the attempts to obtain these additional records are unsuccessful, and it is determined that further attempts would be futile, document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c)(1), (c)(2), (c)(3), and (e)(1). 2. Then schedule another VA audiological evaluation to reassess the severity of the Veteran's left ear hearing loss in accordance with the applicable rating criteria, including speech discrimination testing (Maryland CNC) and to determine the resultant functional effects of this disability, including on his day-to-day activities and employment. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). All diagnostic testing and evaluation needed to make these determinations should be performed, and all clinical findings reported in detail. The examiner must review the claims file for the pertinent medical and other history, including a complete copy of this remand. 3. Then readjudicate this claim for a higher rating for left ear hearing loss in light of the additional evidence. If a higher rating for this disability is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). 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. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs