Citation Nr: 1312892 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-17 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss, and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral tinnitus, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to June 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The request to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus are granted herein, and the merits of the claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a July 2006 rating decision, the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus were denied. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 2. Evidence received since the July 2006 decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. Evidence received since the July 2006 decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for bilateral tinnitus. CONCLUSIONS OF LAW 1. The July 2006 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Since the July 2006 rating decision, new and material evidence has been received to reopen the 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). 3. Since the July 2006 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, given the favorable disposition of the Veteran's petition to reopen a claim for entitlement to service connection for bilateral hearing loss and tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate these claims has been accomplished. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. New and Material Evidence In general, RO decisions are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. See 38 C.F.R. § 3.156(a) (2012). To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views 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." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."' At the outset, the Board notes that in the February 2008 rating decision, the RO determined that new and material evidence had been received. It, therefore, reopened the Veteran's claims for service connection for bilateral hearing loss and tinnitus. However, despite the determination made by the RO, the issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. As such, irrespective of the RO's action in reopening the Veteran's claims, the Board must decide whether the Veteran has submitted new and material evidence to reopen his claims of entitlement to service connection for bilateral hearing loss and tinnitus. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran's bilateral hearing loss and tinnitus service connection claims were originally denied in a July 2006 rating decision. The Veteran submitted a Notice of Disagreement as to that rating decision in March 2007. A Statement of the Case was issued in July 2007. The Veteran did not file a VA Form 9 or other statement that could be construed as a substantive appeal to perfect his appeal to the Board. Here, the Board finds that although the Veteran initiated an appeal by filing a Notice of Disagreement within one year, he failed to perfect that appeal by filing a substantive appeal within one year of the rating decision or within 60 days of the issuance of the Statement of the Case (i.e., by September 2007). 38 U.S.C.A. § 7105(d)(3). Thus, his appeal is considered to have been abandoned. Therefore, the July 2006 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The Board has also considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, here, such regulation is inapplicable as no new and material evidence pertaining to the Veteran's claims for service connection for bilateral hearing loss and tinnitus were received prior to the expiration of the appeal period stemming from the July 2006 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran subsequently attempted to reopen his claims in November 2007. This resulted in the February 2008 rating denial which is the subject of the current appeal. The July 2006 rating action, therefore, represents the last previous final decision on any basis as to the issues of whether the Veteran is entitled to service connection for bilateral hearing loss and tinnitus. Evans v. Brown, 9 Vet. App. 273 (1996). According to the record, since the July 2006 rating decision, the Veteran submitted a June 2010 letter from his private doctor, Dr. E. J. B. This doctor opined that based on the Veteran's history, clinical findings and the nature of his high frequency hearing loss, it is as likely as not that his hearing loss and tinnitus are military service related. The Board finds that this opinion raises a reasonable possibility of substantiating the claims of service connection for hearing loss and tinnitus. Consequently, the claims for entitlement to service connection for bilateral hearing loss and tinnitus are reopened. ORDER As new and material evidence has been received, the claim for entitlement to service connection for bilateral hearing loss, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for bilateral tinnitus, is reopened and, to that extent only, the appeal is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Board recognizes that there are several etiological opinions of record. First, the Veteran was afforded VA examinations in March 2007 and January 2008 where both examiners concluded that the Veteran's bilateral hearing loss was "not at least as likely as not" related to his military service. The rationale provided by both examiners was that the Veteran's hearing was normal when he separated from the military; and that although the Veteran denied occupational noise exposure, he reported using hearing protection occasionally at work, suggesting he was in noise at least some of the time. The examiner in 2008 reported that the Veteran had a long history of hunting. The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, the Board finds that the VA examiners' opinions are inadequate as the conclusions are contrary to Hensley and Ledford. Id. Next, the Board acknowledges the positive nexus opinions, dated February 2006 and June 2010, from the Veteran's private doctor, Dr. E. J. B, who stated that based on the Veteran's "history, clinical findings, and nature of his high frequency hearing loss, it is as likely as not, that his hearing loss and tinnitus are military related...." These positive nexus opinions do not address the Veteran's post-service occupational history of noise exposure while employed at a chemical plant or his history of recreational noise exposure as a hunter. The Board finds that an opinion which takes into consideration the Veteran's complete medical history is warranted. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Board also notes that the VA examinations of record fail to show that the Veteran has hearing loss in the left ear for VA purposes. As it has been several years since the last VA examination it is possible that the Veteran could now meet the criteria for hearing loss under 38 C.F.R. § 3.385. As such, a current VA examination is needed. As it pertains to the claim of service connection for tinnitus, the Board notes that the claims file does not address whether tinnitus is related to or caused by any service-related hearing loss. Under these circumstances, the Board finds that a well-reasoned medical opinion, based upon consideration of the Veteran's documented history and assertions, is still needed to fully and fairly evaluate the claims for service connection for bilateral hearing loss and tinnitus. Hence, the Veteran's claims file should be forwarded to VA examiner for a new examination with an opinion and rationale regarding whether the Veteran has bilateral hearing loss for VA purposes and tinnitus which is due to service. Additionally, the examiner should address whether any service-related hearing loss caused or aggravates tinnitus. In addition, while the Dr. E. J. B has stated in his February 2006 and June 2010 letters that he has treated the Veteran for hearing loss and tinnitus, records of treatment are absent from the claims file. As such these private treatment records from Dr. E. J. B should be obtained and associated with the claims file for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran for the purpose of obtaining authorization to obtain medical records pertaining to hearing loss and tinnitus from Dr. E. J. B. Following receipt of the Veteran's authorization, appropriate steps should be taking to obtain these records. Have the Veteran identify any other private or VA medical providers who evaluated or treated him for tinnitus and/or hearing loss. Thereafter, take appropriate steps to obtain the identified records. If identified records are unable to be obtained, notice must be provided to the Veteran and his representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA audiological examination with an appropriate examiner. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss and/or tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, including noise exposure. If hearing loss is found to be related to service, the examiner should also opine as to whether such service-related hearing loss caused tinnitus. If it is found that hearing loss did not cause tinnitus state whether such aggravates, increases the severity of tinnitus, beyond the natural progress of the disorder. In providing this opinion, the examiner should acknowledge the Veteran's exposure to acoustic trauma in service (including combat service in Vietnam), his lay statements concerning hearing loss and tinnitus, and his complete postservice history of noise exposure, including during his employment and while hunting. The examiner is also asked to address the treatment and nexus opinions from the Veteran's private doctor, Dr. E. J. B. The examiner also should note that the fact that there was no diagnosis of hearing loss in service is not, by itself, a sufficient reason to find no nexus to service. The question becomes whether any incident of service, including noise exposure, caused hearing loss which was diagnosed years after the Veteran's discharge from service. If it is significant that the Veteran did not have hearing loss or tinnitus in service, the examiner should provide a complete rationale for such findings and in so doing point to sound medical principles. The claims file and a complete copy of this REMAND should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished and all findings and conclusions should be set forth in a legible report. All opinions expressed by the examiner should be accompanied by a complete rationale, with citation to relevant medical findings and lay statements. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After completion of the above, the claims should be readjudicated, with consideration given to any new evidence and all appropriate laws and regulations. If the claim is not granted, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs