Citation Nr: 1302276 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-48 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from October 1985 to August 1990, during the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran, sitting at the RO, testified at a Travel Board hearing before the undersigned in July 2012. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of service connection for bilateral hearing loss on the merits 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. An unappealed April 1994 rating decision denied the claim of service connection for bilateral hearing loss. 2. The evidence received since the April 1994 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The April 1994 rating decision which denied the Veteran's claim for service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2012). 2. New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board reopens the Veteran's claim of service connection for hearing loss and remands it for further development. As such, no discussion of VA's duties to notify and assist is necessary, since any error in notice or assistance is harmless. The RO denied the Veteran's claim of service connection for hearing loss in an April 1994 rating decision, in part, because left ear hearing loss was not shown to exist in accordance with 38 C.F.R. § 3.385 and right ear hearing loss preexisted service and was not aggravated during service. The Veteran was duly notified of this action and apprised of her appellate rights by letter dated April 26, 1994. She did not appeal the decision, and no new and material evidence was received within one year. Therefore, the April 1994 rating decision is final. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the April 1994 rating decision consisted of service records; treatment reports from 1990 to 1992; and a March 1994 VA examination. Evidence added to the record since April 1994 includes lay statements, duplicate copies of service treatment records, treatment reports from VA Medical Center in Fayetteville, North Carolina; statement from North Carolina Department of Administration; private medical records from Women's Wellness Center dated from July 2005 through April 2008; private treatment records from Breezewood Family Healthcare dated from June 2004 through September 2007; private medical records from The Hearing Center dated December 2008; records from Hot Springs VA Medical Center dated from 1993 to 1994 (Black Hills Health Care System); and hearing testimony. At the July 2012 hearing, the Veteran's provided testimony that her hearing loss was related to service. (July 2012 Hearing Tr. at 5.). She further stated that she did not have any serious problems with her hearing prior to service. (Id. at 7). She testified that she was exposed to loud noises during service as a result of working in the armory and on the missile field, firing weapons, and exposure to a lot of machinery. She also stated that she started to notice problems with her hearing within one year after her separation from service. The Veteran's testimony provides a more complete picture of the circumstance surrounding origin of the claimed disability. See Hodge v. West, 155 F.3d. 1356, 1363, (Fed. Cir. 1998) (stating that under the regulation new evidence could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision"). Further, her testimony specifically relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened; to this extent only, the appeal is granted. REMAND The Veteran contends that service connection is warranted for hearing loss. She essentially states that her preexisting hearing loss was aggravated during service by exposure to loud noise. She maintains that her hearing loss has continued to worsen over the years due to the in-service noise exposure and should be service connected on an aggravation basis for the right ear and on a direct basis for the left ear. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). For 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 (2012). The evidence shows that the right ear hearing loss pre-existed the Veteran's military service. On entrance examination in August 1985, audiological evaluation reflects puretone thresholds for the right ear at 500, 1000, 2000, 3000, or 4000 Hertz as 5 dB, 5 dB, 5 dB, 35 dB, and 65 dB. A July 1990 audiological evaluation reflects puretone thresholds for the right ear at 500, 1000, 2000, 3000, or 4000 Hertz as 10, 5, 5, 55, and 80. The consultation sheet noted that the right ear had high frequency sensory loss with an undetermined etiology. Left ear hearing was within normal limits. The evidence tends to show that the Veteran was likely exposed to loud noise when she was in service and suggests an increase in severity during service (i.e., and 500, 3000, and 4000 Hertz). Additionally, the post-service treatment records reflect that the Veteran has a diagnosis of right ear hearing loss for VA purposes, see 38 C.F.R. § 3.385. The claim must be remanded to afford the Veteran a VA audiological examination. See McLendon, 20 Vet. App. 79, 81 (2006). In addition to conducting audiometric testing, the prospective examiner should provide an opinion as to whether the Veteran's pre-existing right ear hearing loss had an increase in severity during service and, if so, whether the increase in severity was beyond the natural progress of the disease. On remand, the audiological examination should also include a medical opinion as to whether the Veteran has a diagnosis of left ear hearing loss and whether it is related to her military service, to include in-service noise exposure. At her hearing in July 2012, the Veteran stated that her VA audiologist, I.M., was willing to provide a medical opinion in support of her claim. She should be provided an opportunity to submit an opinion from I.M. on remand. Finally, to ensure completeness of the record, the RO should obtain all outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's more recent treatment records related to hearing loss from the Fayetteville VA Medical Center, and associate the records with the claims folder. 2. Provide the Veteran with an opportunity to submit an opinion from her VA audiologist, I.M., in support of her claim. 3. Thereafter, schedule the Veteran for a VA audiological examination. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. A detailed history of the Veteran's in-service and post-service noise exposure should be taken. All necessary tests and studies should be conducted. The examiner should specifically indicate whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes; i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or a speech recognition score using the Maryland CNC Test of less than 94 percent. With respect to right ear hearing loss, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pre-existing right ear hearing loss underwent an increase in severity during service. In providing this opinion, the examiner should consider the threshold shifts at 500, 3000, and 4000 Hertz in comparing the entrance and separation examinations (dated in 1985 and 1990, respectively). If the right ear hearing loss underwent an increase in severity during service, is it undebateable from a medical standpoint that the increase in severity was due to the natural progress of the condition? Or, was the increase in severity beyond the natural progress of the condition? With respect to any diagnosed left ear hearing loss, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left ear hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, to include noise exposure from service. The examiner must provide a comprehensive report including complete explanation for all opinions and conclusions reached. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs