Citation Nr: 1308855 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-35 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served in the Louisiana Army National Guard from September 1979 to July 1980, during which he had a period of active duty for training (ACDUTRA) from March 3, 1980 to July 31, 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2007 decisional letter and a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2009 letter, the Veteran's representative indicated that the Veteran was withdrawing his request for a personal hearing as he no longer desired a hearing. In September 2011, the Board remanded the case to the RO for additional development of the bilateral hearing loss claim. The reopened claim of service connection for a bilateral hearing loss disability and the claim of service connection for tinnitus are REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An August 2004 rating decision denied the Veteran's claim of service connection for bilateral hearing loss, finding that bilateral hearing loss pre-existed, and was not shown to have permanently worsened as a result of, service. 2. The Veteran initiated an appeal of the August 2004 rating decision denial of service connection for hearing loss, but did not perfect the appeal by filing a timely substantive appeal, and the August 2004 rating decision became final by operation of law based on the evidence of record at the time. 3. Additional evidence received since the August 2004 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for hearing loss and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board's decision to reopen the claim of service connection for bilateral hearing loss is favorable to the Veteran, no further action is required to comply with the VCAA. Procedural History and Evidence Previously Considered An August 2004 rating decision denied the Veteran service connection for bilateral hearing loss on the basis that such disability pre-existed his service, and was not shown to have permanently worsened as a result of service. The Veteran initiated an appeal of that rating decision with the filing of a notice of disagreement in September 2004. The RO issued a statement of the case (SOC) in the matter on February 13, 2006, informing the Veteran that he had 60 days in which to perfect his appeal to the Board with the filing of a substantive appeal statement or else his case would be closed. As his substantive appeal statement was received on May 22, 2006, it was untimely. The RO notified him in an October 2006 letter that his appeal was untimely but that it was reopening his claim for service connection for bilateral hearing loss based on upon the May 2006 submission. As the Veteran did not perfect his appeal to the Board within the time allotted (nor did he appeal the RO decision finding that his appeal was untimely), the August 2004 rating decision became final by operation of law; the claim may be reopened if new and material evidence is received. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the August 2004 rating decision included the following records. Service records showed that the Veteran served in the Louisiana Army National Guard from September 1979 to July 1980, and had a period of ACDUTRA from March 3, 1980 to July 31, 1980. There were no complaints or diagnosis of hearing loss. On service enlistment in September 1979, audiometry revealed that puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, were 25, 20, 20, 35, and 35 in the right ear, and 30, 25, 30, 45, and 55 in the left ear. Audiometry on a service separation physical examination in July 1980 found that puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz respectively were 20, 20, 20, 25, and 45 in the right ear, and 20, 20, 25, 40, and 55 in the left ear. On both examinations, the Veteran's ears were clinically evaluated as normal, there were no defects or diagnoses made in reference to the Veteran's hearing acuity, and his "PULHES" physical profile included "1" for hearing (reflecting high level of fitness versus a "4" which reflects a medical condition or physical defect that is below the level of fitness for retention in the military service). On a Report of Medical History taken at the time of the physical examinations in September 1979 and July 1980, the Veteran denied a history of hearing loss. Postservice, private records indicate that the Veteran had moderately severe hearing loss in both ears, as shown by audiograms in October 2000, August 2002, September 2002, and September 2003. A September 2002 record from Occupational Medicine Clinic notes he reported that he sometimes had difficulty hearing. In a statement received with the filing of his claim in January 2004, the Veteran asserted that his ears were "damaged" by noise exposure during basic training with the firing of weapons and grenade explosions. In a statement received in February 2005, a friend of the Veteran, who apparently served in the military with him, indicated that the Veteran's hearing was "bad." Current Claim to Reopen As the unappealed August 2004 rating decision became final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C.A. §§ 5108, 7105. Where, as here, a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). "New evidence" means existing evidence not previously submitted to agency decision makers; "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" 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. 38 C.F.R. § 3.156(a). 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). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In order that the additional evidence may be considered new and material, the evidence must relate to the basis of the prior denial of the claim. The records received since the August 2004 rating decision consist of VA outpatient records, additional private treatment records, and statements of the Veteran and his wife. VA records dated from September 2006 show complaints and diagnosis of hearing loss, and indicate that the Veteran received hearing aids. In September 2006, he reported that his hearing loss was getting worse, and in October 2006 hearing aids were ordered. In October 2011, he was fitted with new hearing aids as his hearing had decreased slightly from his 2006 audiogram results. Private records from The South Bend Clinic in December 2012 indicate that the Veteran was seen with a history of hearing loss that apparently started during military service (it was reported that the Veteran did not seek a doctor during service for the hearing loss); after an audiogram his hearing loss was characterized as severe to profound in both ears. In various statements, the Veteran indicated that he had had a problem with his hearing during service but did not seek a doctor (August 2007 statement) and that he had good hearing before he joined the military (statement received in November 2007). He also maintained in a May 2009 statement that his exposure to loud noises during service included firing weapons (M-16), throwing hand grenades, and training on heavy equipment (during AIT). In a letter received in October 2009, he indicated that he could not recall seeing a doctor for his ears during service, that his ears were "o.k." before service, and that during AIT he was around noise from bulldozers. His wife indicated in a November 2011 statement that for many years she has had to repeat herself many times before the Veteran could hear her. The additional evidence received since August 2004 includes statements from the Veteran who provides particular details on his noise exposure during service (i.e., exposure to weapons, grenades, and heavy equipment). He maintains that he had good hearing prior to enlistment but experienced hearing problems during service although he did not recall seeking medical assistance at the time. His wife asserts that the Veteran's hearing difficulty has persisted for many years. When considered with the previous evidence of record, the additional statements since the 2004 RO decision constitute new and material evidence to reopen the claim of service connection for bilateral hearing loss, particularly in light of the low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App. 110 (2010). This is because the evidence relates to an unestablished fact necessary to substantiate the claim, namely, evidence of worsening of hearing during service as compared with the period prior to service. In other words, the additional evidence received since the 2004 rating decision, when viewed in the context of the evidence already of record, raises a reasonable possibility of substantiating the claim. The RO has previously denied the claim on the basis that a pre-existing disability was not aggravated during service, but the Veteran has argued in part that he did not have a pre-existing hearing problem and only discovered a hearing problem beginning in service after exposure to particular noise. In that regard, it is acknowledged that the credibility of the evidence, particularly the statements offered by the Veteran, is to be presumed. As the additional evidence received is both new and material, the claim of service connection for bilateral hearing loss must be reopened. ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is granted. REMAND Prior to considering the claim of service connection for bilateral hearing loss on the merits, as well as the claim of service connection for tinnitus, further development of the record is necessary to comply with VA's duty to assist in the development of facts pertinent to the claim. 38 C.F.R. § 3.159. The Veteran has not ever been afforded a VA examination to determine the etiology of his hearing loss, to include whether it may have increased in severity during or as the result of service. The Board notes that audiometry for entry on ACDUTRA (summarized above) did not reflect a hearing loss disability in the right ear (as defined for VA purposes in 38 C.F.R. § 3.385), whereas audiometry on discharge from ACDUTRA showed such disability in the right ear (note 45 decibel puretone threshold at 4000 Hertz), suggesting onset or aggravation of a right ear hearing loss during that period of service. As the evidence of record is insufficient to decide the claim, a VA medical examination and a medical opinion are needed. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the tinnitus claim, the Veteran underwent a VA examination in August 2012 to determine the etiology of any tinnitus. The examiner concluded that the Veteran had a diagnosis of clinical hearing loss and that his tinnitus was at least as likely as not a symptom associated with the hearing loss but less likely than not caused by or a result of military noise exposure. Thus, the evidence demonstrates that the Veteran's tinnitus is inextricably intertwined with his bilateral hearing loss. As the Veteran is to be scheduled for a VA examination to assess the etiology of his hearing loss, the examiner should also comment on the development of his tinnitus (which has been stated to be related to the hearing loss). In addition, since the issuance of a March 2012 SSOC regarding bilateral hearing loss, the RO has associated with the claims file additional, pertinent VA outpatient records dated from February 2010 to October 2012. Also, the Veteran has forwarded records from The South Bend Clinic dated in December 2012. Neither the Veteran nor his representative has waived the right to have the RO initially consider this evidence in accordance with 38 C.F.R. § 20.1304. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA audiology examination to determine the likely etiology of his bilateral hearing loss and tinnitus. The entire record must be reviewed by the examiner in conjunction with the examination. Based on examination/interview of the Veteran and review of the record, the examiner must provide opinions that respond to the following: (a). What is the most likely etiology for the Veteran's bilateral hearing loss? Specifically, is it at least as likely as not (a 50 % or better probability) that the Veteran's bilateral hearing loss was incurred or aggravated during his period of ACDUTRA. If the opinion is negative (i.e., that it is not at least as likely as not that the hearing loss was incurred or aggravated in service), the examiner's rationale must reconcile that conclusion with the factual data which shows that a right ear hearing loss disability (in accordance with 38 C.F.R. § 3.385) was not noted on entrance but was noted on discharge, and identify the etiology for the hearing loss considered more likely (with explanation why that is so). (b). What is the most likely etiology for the Veteran's tinnitus? Specifically, is it at least as likely as not (a 50 % or better probability) that the Veteran's tinnitus is related to his period of ACDUTRA? The examiner's rationale should include comment on the prior VA examiner's observation (in August 2012) that the Veteran's hearing loss and tinnitus share a common etiology (but that the tinnitus is unrelated to noise trauma in service). The examiner is asked to consider the following facts noted. The Veteran denied ringing of the ears on private records in August 2002 and August 2003 and on a VA outpatient record in September 2006, but complained of intermittent tinnitus on VA outpatient records in November 2009. In statements, the Veteran asserts that he was exposed to noise in service (firing weapons, throwing grenades, and training in heavy equipment), that his hearing was good prior to service, that he had hearing problems during service but did not seek medical attention, and that he started hearing ringing in his ears during service. 2. The RO should then review the record, and readjudicate the claims of service connection for bilateral hearing loss (de novo) and tinnitus. If either remains denied, issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board.. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs