Citation Nr: 1313334	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  12-19 408	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral sensorineural hearing loss, and, if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel





INTRODUCTION

The Veteran had active service from September 1953 to November 1958 and from April 1959 to May 1962. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio which denied service connection for bilateral hearing loss.  The May 2011 rating decision adjudicated a pending claim as new evidence had been received within one year of the prior October 2008 rating decision which itself was a reconsideration of a June 2008 rating decision which had reopened and denied a claim for service connection for bilateral hearing loss.  

Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for bilateral hearing loss.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The merits of the claim for service connection for bilateral sensorineural hearing loss are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In a May 1983 rating decision, the RO denied a claim for service connection for defective hearing condition.  At no time since the decision have any additional relevant service records been obtained.  The Veteran did not appeal the decision, no evidence was received within one year of the rating decision, and the determination is now final. 

2.  Evidence submitted since the RO's May 1983 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss.


CONCLUSIONS OF LAW

1.  The May 1983 rating decision that denied service connection for bilateral hearing loss, is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 

2.  Evidence received since the May 1983 rating decision is new and material and the criteria to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.

In May 1983 the RO denied service connection for a defective hearing condition.  In August 1983 the Veteran filed a notice of disagreement.  In October 1983 a statement of the case was issued.  An appeal was not received at any time.  The Veteran did not appeal this decision, no evidence was received within one year of the decision, and it became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d) (2012).

The Veteran filed a claim to reopen entitlement to service connection for bilateral hearing loss in July 2008.  

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.

The regulations define 'new' evidence 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.  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

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 evidence received since the May 1983 RO decision includes a VA examination which includes the Veteran's statements as to his hearing difficulty in service and continuity of symptomatology. 

This evidence is new and material as it was not of record at the time of the last rating decision and it relates to a material element of the claim, specifically evidence continuity of symptomatology.  

In determining whether evidence is new and material, the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The information submitted since the last final rating decision constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156(a); and reopening the claim is warranted.  38 U.S.C.A. § 5108.  For the reasons detailed below, however, further development is needed before the Board can address the merits of the claim. 


ORDER

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


REMAND

A remand is required to comply with the VA's duty to assist. 

In June 2008, a VA examination was conducted.  The VA examiner reviewed the claims file, identified hearing loss related records, and provided a negative nexus opinion.  However, it appears that she did not consider all evidence of record as a private audiogram from July 1970 and audiographs from May 1971 and February 1972 were not identified nor discussed.  The medical opinion is inadequate without consideration of all evidence of record.  

An inadequate examination frustrates judicial review.  Hicks v. Brown, 8 Vet. App. 417, 422 (1995).  Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the Veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following action:

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

1.   Request an addendum from the examiner who performed the June 2008 examination.  If the examiner is not available, forward to the claims folder to an appropriate medical professional to obtain the opinion. 

Ask the examiner to review the report of the 2008 VA examination, then the July 1970 audiogram by Ford Company, and the May 1971 and February 1972 audiograms by Cadillac, and indicate whether these documents change the 2008 opinion in any way.  Since the prior opinion was based, in part, on normal post-service audiograms in 1976 and 1979, please discuss how the 1970-1972 audiograms affect the prior opinion, if at all.

2. Review the claims file to ensure that all of the foregoing requested development is completed, arrange for any additional development indicated, then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate SSOC and provide the Veteran and his representative an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.


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 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).




______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs