Citation Nr: 1305599	
Decision Date: 02/15/13    Archive Date: 02/21/13

DOCKET NO.  11-13 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from February 1943 to March 1946.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  At that time, the RO declined to reopen the Veteran's previously denied claim of service connection for bilateral hearing loss.  

The Veteran was scheduled to appear at a videoconference hearing before the Board in October 2012.  He did not appear, nor did he request that his hearing be rescheduled.  Thus, his request for a Board hearing is deemed to be withdrawn.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The reopened claim for service connection for bilateral 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.  The claim of entitlement to service connection for bilateral hearing loss was denied in an unappealed, November 1991 rating decision.

2.  The evidence received since the November 1991 rating decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim.

CONCLUSION OF LAW

New and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim to reopen the previously denied claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002) or 38 C.F.R. § 3.159 (2012) before the Board decides this matter.

Legal Criteria

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Factual Background and Analysis

The RO initially denied service connection for bilateral hearing loss in September 1991 and November 1991 rating decisions.  The Veteran was notified of the most recent denial by a letter dated in December 1991.  He did not appeal the denial or submit any additional pertinent evidence within the appeal period.  

The basis for the 1991 denial was that there was no evidence of in-service or post-service complaints of bilateral hearing loss.  The medical evidence of record in November 1991 included the Veteran's service treatment records (STRs), but no post-service clinical records.  

Evidence received since November 1991 includes private audiological treatment records and the Veteran's statements supporting his claim.  One private record dated in what appears to be March 1995 shows a diagnosis of bilateral sensorineural hearing loss.  A 2003 private treatment record shows bilateral hearing loss and an copy of an order for hearing aids.  

A medical diagnosis of a chronic hearing loss disability was an element of service connection that the RO found was not met in November 1991.  The Board finds that the recent VA treatment records are new and material as they relate to a previously unestablished element of entitlement to service connection-namely, it supports the presence of a current bilateral hearing loss disability.  Accordingly, this evidence is sufficient to reopen the previously-denied claim for service connection for bilateral hearing loss.


ORDER

The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for bilateral hearing loss is granted.


REMAND

The Board finds that further development is required before the claim of entitlement service connection for bilateral hearing loss is adjudicated.

In light of the reopening above, the Board finds that the Veteran should be afforded a VA examination for his claimed bilateral hearing loss disability.  He has contended that in-service noise exposure from a mount gun blast caused hearing loss in service and since.  The record reflects that in 1995, the Veteran was shown to have significant bilateral hearing loss, and he was prescribed hearing aids.  

The RO attempted to schedule the Veteran for VA audiological examinations in 2011 and 2012.  In September 2011, the Veteran failed to report to his scheduled examination, and in March 2012, he canceled the examination at the Newark VAMC location.  In a deferred rating decision, the rating specialist requested that the Veteran be contacted to determine if he would be willing to report to VA examinations in East Orange, New Jersey, or Philadelphia, Pennsylvania, as he failed to report to previously scheduled examinations.  A letter was sent to the Veteran in May 2012 requesting whether he wished to appear for a VA examination.  He did not respond.  

Nevertheless, based upon the reopening above, the Board finds that the Veteran should be afforded an additional opportunity to appear at a VA examination to determine whether his currently diagnosed bilateral hearing loss is related to his period of active duty.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, including contacting him for any records in his possession.

2.  The Veteran must then be afforded a VA audiological examination, conducted by an examiner who has reviewed the claims file-including any pertinent evidence in Virtual VA.  The examiner must interview the Veteran and must conduct puretone audiometry and Maryland CNC tests.  Based upon the claims file review, the Veteran's history, and the examination findings, the examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss is etiologically related to service, including noise exposure therein.  All opinions must be supported by a thorough and detailed rationale in a typewritten report.

The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial.  See 38 C.F.R. § 3.655 (2012).

3.  The RO or the AMC should also undertake any other development it determines to be warranted.

4.  Then, the RO or the AMC should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the 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).




______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs