Citation Nr: 1308979	
Decision Date: 03/18/13    Archive Date: 03/25/13

DOCKET NO.  10-44 195A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Katrina J. Eagle, Esq.


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to October 1969, including service in the Republic of Vietnam from July 1967 to June 1968.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The claim for service connection for bilateral hearing loss was denied by the RO in August 2004.  Although the RO apparently reopened this claim in April 2009, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996).  

The issues of service connection for bilateral hearing loss and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  In an August 2004 rating decision, the RO denied service connection for bilateral hearing loss.  The Veteran did not timely appeal the decision, and it is now final.

2.  Evidence received since the August 2004 rating decision is new and material; it relates to unestablished facts necessary to substantiate the claim for 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 have been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

The Board is reopening the claim for service connection for bilateral hearing loss.  Any error committed with respect to either the duty to notify or the duty to assist with regard to this issue was harmless and will not be further discussed.

II.  New and Material Evidence

The RO denied service connection for bilateral hearing loss in August 2004, finding that there was no evidence that high frequency hearing loss had been clinically diagnosed.  The Veteran did not appeal this decision, and it became final.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.160(d).

In November 2006, the Veteran filed a request to reopen the claim for service connection for bilateral hearing loss.

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  Id.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

'New' evidence is defined as existing evidence not previously submitted to agency decisionmakers.  'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  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.  Id.

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The relevant evidence received since the August 2004 rating decision includes statements from the Veteran and his representative and a December 2008 VA examination showing that the Veteran was diagnosed as having moderate to severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear.  

This evidence is new and material, as it was not of record at the time of the last rating decision, and it relates to material elements of the claim showing that the Veteran had been clinically diagnosed as having bilateral hearing loss.  Reopening the claim is warranted.  38 U.S.C.A. § 5108.


ORDER

New and material evidence having been submitted, the petition to reopen the claim for service connection for bilateral hearing loss is granted.


REMAND

In September 2009, the Social Security Administration (SSA) replied to a request for records stating that a disability decision was pending and to allow six months.  No further development was accomplished in order to obtain the Veteran's SSA records.  During VA treatment in May 2010, the Veteran reported receiving SSA benefits.  SSA records in the claim file are, at best, incomplete.  An SSA decision referred to by the Decision Review Officer in the September 2010 Statement of the Case is not in the claim file.  These records must be obtained on remand as the SSA's decision and the records upon which the agency based its determination are potentially relevant to VA's adjudication of his claims.  38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006).  

The Veteran contends that his bilateral hearing loss developed as a result of noise exposure during service.  

During the December 2008 VA examination, the Veteran reported that he was an engine mechanic, and was exposed to acoustic trauma without the benefit of any hearing protection.  He did have post-service noise exposure with recreational shooting, but used ear protection.  The Veteran also reported in a February 2007 statement that he was engaged in combat during service and was exposed to noise from artillery fire.  

His DD 214 shows that he was a wheel vehicle repairman.  His personnel records show that he served in Vietnam Counter Offensive Phases III, IV, and V, and in the Tet Offensive.  

During the December 2008 VA examination, the Veteran was diagnosed with moderate to severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear.  The examiner noted that the Veteran did not have hearing loss during service and opined that the Veteran's hearing loss was not caused by or a result of military noise exposure as there was no evidence of onset of hearing loss during service or within a reasonable time following discharge.   

This finding is confusingly inconsistent with the other opinion provided by this examiner during the same examination; he conceded that the Veteran had noise exposure during service and that such would support a finding that the Veteran's tinnitus was related to service.  

Furthermore, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Notwithstanding the fact that the evidence does not show hearing loss for VA compensation purposes during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present disability to active service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

The examiner did not address relevant evidence of record, including  the Veteran's exposure to acoustic trauma during service without excessive noise exposure after service (and that with ear protection) and his report of having hearing loss at separation in the report of medical history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  This examination is not, and is of very little probative value.  As the current audiologic examination is inadequate, a new examination and opinion is required.

Accordingly, the case is REMANDED for the following action:

1.  Request, directly from the SSA, complete copies of the determination on a claim for disability benefits, together with the medical records that served as the basis for such determination.  All attempts to fulfill this development must be documented in the claims file.  If the search for these records is negative, that must be noted and the Veteran must be informed in writing. 

2.  Ensure VCAA compliance with the duty to notify and the duty to assist regarding the issue of entitlement to TDIU, including a VA examination, if necessary.

3.  After completion of the above development, schedule the Veteran for an audiological examination to determine the current nature and likely etiology of his bilateral hearing loss.  The claims file must be made available to the examiner for review prior to the examination.  All necessary tests must be conducted and the examiner must review the results of any testing prior to completion of the report.

The examiner must provide an opinion as to whether it is at least as likely as not that the current bilateral hearing loss had its onset during active service, or is otherwise related to active service.  In offering this opinion, the examiner must specifically acknowledge and discuss the Veteran's confirmed inservice noise exposure and his report of hearing loss at separation as well as any competent lay evidence regarding in-service noise exposure and continuity of hearing loss since service.  A fully articulated medical rationale for all opinions expressed, must be set forth in the examination report.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

4.  Thereafter, readjudicate the Veteran's claims.  If the decision remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.

The appellant 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).




______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs