Citation Nr: 1306229	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  12-25 691 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability, and if so, whether the reopened claim should be granted. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse 





ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel


INTRODUCTION

The Veteran had active service from October 1951 to September 1959. 

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2013; a transcript of the hearing is associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  

The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND that follows the decision below. 


FINDINGS OF FACT

1.  In a December 1999 rating decision, the RO denied a claim of entitlement to service connection for bilateral hearing loss; the Veteran did not appeal the decision and no pertinent evidence was received within the period for appealing the decision.  

2.  The evidence added to the record following the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim.  
 
CONCLUSION OF LAW

The criteria for reopening the claim for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An 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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).
  
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) has 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 unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  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). 

Analysis

The Veteran's claim of entitlement to service connection for a bilateral hearing loss disability was initially denied by the RO in a December 1999 rating decision.  Evidence considered at that time consisted of VA outpatient treatment records dated from September 1985 through October 1998, and from March 1999 through June 1999.  

Based on a review of the evidence, the RO concluded that service connection for hearing loss disability was not warranted because the evidence failed to show that his current hearing loss disability was incurred in or aggravated by service.  The Veteran was notified of the decision and his appellate rights but did not appeal.  In addition, no pertinent evidence was received within the period for appealing the decision.

In November 2010, the Veteran submitted a statement requesting that the claim of entitlement to service connection for bilateral hearing loss be reopened.  In the March 2011 rating decision on appeal, the RO reopened such claim.  Notwithstanding the RO's actions, the Board must make its own determination on this matter.  Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  

Evidence received since the December 1999 rating decision includes:  VA outpatient treatment records dated from December 2008 through March 2011; several statements from the Veteran; a March 2011 VA examination report; an October 2011 statement from the Veteran's wife, C.S.; an October 2011 statement from the Veteran's son, G.S.; an October 2011 statement from the Veteran's son, R.S.; and a January 2013 hearing transcript.   

Significantly, in the October 2011 statement from the Veteran's wife, she stated that she and the Veteran started going together in 1953 before he got out of the service, and that time, the Veteran complained about his ears ringing and his difficulty hearing.  She further stated that after she and the Veteran were married in 1954, he complained about his ears ringing and indicated that he could not hear well after working on jet air craft.  She indicated that after the Veteran's service, she and the Veteran attended college, but the Veteran had to sit in the front to hear the professors.  She concluded that the Veteran has continued to suffer from hearing loss since that time.

The Board finds the aforementioned statement from the Veteran's wife noting the Veteran's complaints of hearing difficulty during service in 1953, when they started dating, which continued upon discharge and subsequent to service, when they attended college together and the Veteran had to sit in the front to hear the professors, to be new and material.  In this regard the Board notes that the lay statement directly addresses the reason the claim was originally denied.  This evidence is not cumulative or redundant of the evidence previously of record. Moreover, the evidence is sufficient to raise a reasonable possibility of substantiating the claim.

Accordingly, reopening of the claim for entitlement to service connection for bilateral hearing loss disability is warranted. 



ORDER

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


REMAND

The Veteran contends that his current hearing loss disability is related to noise trauma in service.  Specifically, he alleges that he was subjected to excessive noise coincident to his duties as a mechanic working on planes while in the U.S. Air Force.  See January 2013 hearing transcript.  With respect to the reopened claim for service connection for bilateral hearing loss disability, the medical opinion of record is not adequate for adjudication purposes.

The Veteran maintains that he was exposed to noise from jet air craft throughout his eight years in service.  His DD Form 214 shows a military occupational specialty assignment in the periodic maintenance squadron with the 3556th.   Subsequent to service, the Veteran attended college and thereafter worked as a minister.  Although the Veteran reported such exposure, the March 2011 VA examiner indicated that the presence or absence of hearing loss was unknown because the Veteran's service treatment records were unavailable.  The examiner opined that the Veteran's current hearing loss disability was not related to his service.  In providing the opinion, the examiner noted that the Veteran had several post-service health concerns that were known to be associated with hearing loss, such as diabetes and chronic kidney disease.  He further noted, in significant part, that the Veteran was treated for ear-related concerns, however, hearing loss was not documented in his treatment records until the late 1990's.  

The March 2011 VA examination report is in inadequate, as the examiner failed to consider the Veteran's credible reported history and testimony of gradual hearing loss since his time in service.  Although the Veteran's post-service treatment records until the "late 1990's" are silent for complaints and treatment for hearing loss, the Board cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  

The Veteran and his wife have submitted competent lay statements indicating that his hearing loss was present in service.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007); and Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  The Court has held that credible evidence of continuity of symptomatology is enough to satisfy the "low threshold" requirement that a disability "may be associated" with service.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  Therefore, on remand, VA should obtain a medical opinion.

Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington DC, for the following actions:

1.  The RO or the AMC should arrange for the Veteran to be examined by an examiner with sufficient expertise to determine the etiology of his bilateral hearing loss disability.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner in conjunction with the examination. 

Any indicated evaluations, studies, and tests deemed to be necessary must be accomplished.  

Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should state whether it is at least as likely as not (i.e., a 50 percent or better probability) that the bilateral hearing loss disability had its onset in service or is etiologically related to any in-service disease, event, or injury.  
The examiner is instructed to accept the Veteran's exposure to noise during service as fact and to consider the Veteran to be a reliable historian.  

The examiner must acknowledge and discuss the Veteran's (and his wife's) lay statements and hearing testimony that he had hearing loss in service.

The rationale for all opinions expressed must also be provided.

2.  The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination.  A copy of all notifications, including the address where the notice was sent, must be associated with the claims file if the Veteran fails to report for the examination.  The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim.

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 issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files are 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 unless he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

As noted above this case has been advanced on the Board's docket.  It must be handled in an expeditious manner by the RO or the AMC.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs