Citation Nr: 1313665 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 12-05 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether there is new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss disability and if so whether the claim should be granted. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran had active service from September 1956 to September 1960. This appeal comes before the Board of Veterans' Appeals (Board) from a decision of February 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2013. A transcript of the hearing has been associated with the claims file. Although the Veteran perfected an appeal with respect to the issue of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person, in August 2012, prior to the certification of the appeal, the Veteran's representative withdrew the appeal for that benefit. The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Entitlement to service connection for bilateral hearing loss disability was denied in a February 2006 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss disability. CONCLUSION OF LAW New and material evidence to reopen the claim of entitlement to service connection for bilateral hearing loss disability has been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to service connection for bilateral hearing loss disability was denied in a February 2006 rating decision because the evidence did not indicate that hearing loss began in service or was causally related to service. The Veteran was notified of this decision but did not appeal the decision. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). No pertinent evidence was received within the one year period for appealing the prior denial. The evidence received after the expiration of the appeal period includes a audiologist's statement that although the exact determination of the cause of the hearing loss could not be made at that time, if the Veteran, "worked in an area where there was far more noise exposure on his left side than his right, that could possibly be an explanation for the dramatic difference between his ears and indeed substantiate the theory that noise exposure played a significant role in the loss." See February 2013 Barlow statement. This statement is not cumulative or redundant of the evidence previously of record The Board finds the new opinion, in conjunction with the Veteran's allegations of significant in-service noise exposure and insignificant post-service noise exposure, meets the low threshold of Shade. Thus, reopening of the claim is in order. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for bilateral hearing loss disability is granted. REMAND It appears there may be outstanding VA treatment records, notably those dating prior to February 2003. These must be requested. Additionally, an addendum opinion should be requested from the examiner who performed the May 2012 VA examination. In the addendum, the examiner must address the February 2013 opinion from the private audiologist. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Ensure all available VA treatment records have been associated with the record, notably those associated with treatment via the St. Cloud VA health system prior to February 2003. 2. Forward the claims folder and any relevant records on Virtual VA to the May 2012 VA examiner (or an appropriate substitute, if the May 2012 examiner is unavailable) for an opinion as to the etiology of the hearing loss. After reviewing the record, the examiner should opine whether it is at least as likely as not (50 percent or better probability that the hearing loss began during service or is otherwise etiologically related to service. A rationale should be provided for any opinion expressed, with discussion of the increased, though still "normal," puretone thresholds at separation, the in-service noise exposure, and the February 2013 private audiologist's opinion. The examiner is reminded that normal audiological findings at separation are not determinative. The examiner is also reminded that prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). If the examiner is not able to provide an opinion because it would be speculative, the examiner should specify whether there is additional information that would enable him/her to provide the required opinion; or whether the inability to provide the requested opinion is based on the limits of medical knowledge. 3. Undertake any other indicated development. 4. Thereafter, readjudicate the claim. If the benefit sought on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case to the appellant and his representative and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs