Citation Nr: 1306941 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-46 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hearing loss. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which confirmed a previous denial of the Veteran's claim of service connection for bilateral hearing loss. The Veteran appeared before the undersigned Veterans Law Judge via videoconference hearing in April 2012; a transcript of the hearing has been associated with the record. (The decision below addresses the Veteran's application to reopen the previously denied claim. The underlying question of service connection is addressed in the remand that follows the decision.) FINDINGS OF FACT 1. By a July 1968 rating decision, the RO denied a claim of service connection for hearing loss; the Veteran did not file a notice of disagreement, and no new and material evidence was received during the applicable appeal period. 2. The evidence received since the July 1968 rating decision pertains to a basis for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received with respect to the claim of service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION By a July 1968 rating decision, the RO denied service connection for defective hearing. In the 1968 decision, the RO noted that the Veteran claimed intermittent hearing impairment at separation from military service, but that there was no record of diagnosis or treatment in service for an ear condition and therefore there was no basis for entitlement to service connection for defective hearing. The evidence of record at that time included service treatment records, the Veteran's statements, and a June 1968 VA audiology examination. The Veteran did not file a notice of disagreement, and there was no new and material evidence associated with the claims file during the appeal period. Consequently, the rating decision is deemed final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. All evidence submitted by or on behalf of a claimant since the most recent final denial must be reviewed to determine whether the claim should be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Evidence received since the prior denial includes the Veteran's statements that he noticed hearing loss within the first year after his discharge from service while assisting his family in funeral preparations after his brother was killed in Vietnam, that he was treated shortly after service for hearing loss, and that he has been provided with hearing aids. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In addition, the Veteran was provided with a VA examination in December 2009. The results of this examination meet the VA criteria for impaired hearing in the Veteran's right ear. 38 C.F.R. § 4.85 (2012). As such, new and material evidence has been received that relates to an unestablished fact and may provide a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening the Veteran's claim of service connection for hearing loss have been satisfied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the application to reopen a claim of service connection for hearing loss is granted. REMAND The Veteran contends that his hearing loss is related to military service. It has been established by the record that the Veteran had noise exposure in service. (He has been granted entitlement to service connection for tinnitus based on this noise exposure. See rating decision issued in October 2009.) At his hearing, he testified that he noticed a hearing loss shortly after his return from active duty, when assisting in making funeral arrangements for his brother, who was killed while in Vietnam in 1966. The Veteran testified that he had undergone a VA audiological evaluation in order to obtain hearing aids. The VA medical records in the claims file show that the Veteran was provided with such an evaluation in March 2008. In addition, the most recent VA medical records in the claims file are from May 2008; however, it appears that the Veteran has had ongoing treatment from VA. These records are not in the claims file and are not in the Virtual VA online records system. Where VA has constructive and/or actual knowledge of the availability of pertinent reports in the possession of VA, an attempt to obtain those reports must be made. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, these records should be associated with the claims file. The Veteran has also reported that he was treated shortly after service for his hearing loss at the Jones Hearing Center in Fort Worth, Texas, which had gone out of business 30 to 40 years prior to the hearing. The Veteran apparently attempted to obtain those records, and was informed that they had been stored in a warehouse. The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). VA has a duty to help obtain records of treatment reported by a private physician. Massey v. Brown, 7 Vet. App. 204 (1994). On remand, the agency of original jurisdiction (AOJ) should attempt to obtain these records. The United States Court of Appeals for Veterans Claims has held that once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Veteran was provided with a VA audiological examination in December 2009. The examination results reflected hearing impairment as defined by VA regulations in the Veteran's right ear. The examiner did not provide a nexus opinion at the time of the examination as the claims file was not available for review, but provided an addendum opinion in January 2010. The examiner opined that, after reviewing the service treatment records, a personal interview and audiometric testing, it was her opinion that the Veteran's hearing was less likely as not a result of noise exposure in service. However, this examiner did not provide an explanation for this opinion. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). As such, on remand, the Veteran should be provided with another VA examination, to determine whether any hearing loss is related to service and to obtain an explanation for the medical opinion. In addition, if any record now shows a left ear hearing loss, the examiner should address these findings and provide an opinion with a rationale with respect to whether the Veteran has a left ear hearing loss that is related to service. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment or evaluation related to the Veteran's hearing loss from VA, including, but not limited to, an audiological evaluation provided in March 2008 and VA medical records showing treatment since May 2008. 2. Take the necessary steps to obtain all private records pertaining to treatment or evaluation of the Veteran's hearing loss, including from any medical providers at the Jones Hearing Center in Fort Worth, Texas, in accordance with 38 C.F.R. § 3.159. (The Veteran has indicated that he was seen at this facility shortly after his return from military service, and that this care provider went out of business, but that he was informed that his records were still archived in a warehouse.) If additional information is needed to complete this request, the Veteran should be so advised of the specific information needed as well as any necessary consent to release records. 3. The Veteran should be schedule for a VA audiological evaluation. All indicated tests and studies should be conducted, including those necessary to determine whether the Veteran meets the criteria for impaired hearing as defined by 38 C.F.R. § 3.385. The claims folder, including this remand, must be sent to the examiner for review. The examiner should review the audiological results of record, opine as to whether it is at least as likely as not (50 percent probability or more) that any impaired hearing was caused by or is etiologically related to any incident of active duty, to include the Veteran's in-service noise exposure. The examiner must provide a detailed explanation for each opinion. The examiner should address the fact it has been established that the Veteran had noise exposure in service and the Veteran's statements that he noticed a hearing loss within the first year after his discharge while assisting his family in funeral preparations after his brother was killed in Vietnam, and that he was seen shortly after service for hearing loss. The medical reasons for accepting or rejecting the Veteran's statements regarding continued problems with hearing loss since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. The Veteran should be given opportunity to respond before the case is returned 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs