Citation Nr: 1314210 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 11-23 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for loss of vision of the left eye. 2. Entitlement to service connection for loss of vision of the left eye. 3. Whether new and material evidence has been presented to reopen a claim of service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and S.C. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1951 to July 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the RO reopened the claims, the Board has a legal duty to address the "new and material evidence" requirement of 38 C.F.R. § 3.156 regardless of the actions of the RO. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In March 2013, the Veteran appeared at hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the Veteran's file. In a statement in August 2010, the Veteran raised the claim of service connection for tinnitus, which is referred to the RO for appropriate action. The reopened claims of service connection for a loss of vision of the left eye and for a bilateral hearing loss disability are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In a December 2002 rating decision, the RO denied the claim of service connection for loss of vision of the left eye; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and new and material evidence was not received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. The additional evidence since the rating decision in December 2002 by the RO, denying the claim of service connection for loss of vision of the left eye relates to unestablished facts necessary to substantiate the claim. 3. In a December 2002 rating decision, the RO denied the claim of service connection for a bilateral hearing loss disability; after the Veteran was notified of the adverse determinations and of his procedural and appellate rights, he did not appeal the rating decision and new and material evidence was not received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 4. The additional evidence since the rating decision in December 2002 by the RO, denying the claim of service connection for a bilateral hearing loss disability relates to unestablished facts necessary to substantiate the claim. CONCLUSIONS OF LAW 1. In a rating decision in December 2002, the RO denied the service connection for loss of vision of the left eye and the rating decision became final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been presented to reopen the claim of service connection for loss of vision of the left eye. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. In a rating decision in December 2002, the RO denied the service connection for a bilateral hearing loss disability and the rating decision became final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been presented to reopen the claim of service connection for a bilateral hearing loss disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103 and 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. In light of the grant of the application to reopen the previously denied claims of service connection, further discussion here of VCAA compliance is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Claims In April 2010, the Veteran filed the current claims to reopen. As the Veteran's claims to reopen were received after the regulatory definition of new and material was amended in August 2001, the current regulatory definition of new and material evidence applies. 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. New and material evidence received prior to the expiration of the appeal period 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(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 determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Also, the law is to be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). Procedural History and Evidence Previously of Record In a rating decision in December 2002, the RO denied the claims of service connection for loss of vision of the left eye and for a bilateral hearing loss disability because there was no evidence of a current left eye disability or bilateral hearing loss disability. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and new and material evidence was not received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. The rating decision became final by operation of law on the evidence of record, except the claims may be reopened if new and material evidence is presented. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the rating decision in December 2002 consisted of VA records from January 2001 and November 2002, which contain no relevant evidence pertaining to the claims. The service treatment records are presumed lost due to a fire in 1973 at the federal facility where the records, if any, were stored. Additional Evidence The additional evidence presented since the rating decision in December 2002 includes statements submitted by the Veteran, private medical records from Dr. G.K., a VA examination in December 2010, VA records from December 1998 and July 2011, and the Veteran's testimony. The evidence submitted since the December 2002 rating decision includes diagnoses of a left eye disability, a senile nuclear sclerotic cataract and a disciform scar, and a diagnosis of sensorineural hearing loss that meets the standard under 38 C.F.R. § 3.385 for a hearing loss disability for the purpose of VA disability compensation. In March 2013, the Veteran testified that on separation examination he was told his vision was 20/40 and that he did not suffer an eye injury in service and that he started to wear glasses after he had right eye surgery in about 2002. The Veteran testified that he was a heavy equipment operator and built air strips. He stated that he was exposed to the noise from the aircraft that used the airstrips, but he did not recall having a hearing problem in service and that he started having hearing problems after service in late 1953 when he was treated for an ear infection and he has had a hearing problem since then. As the additional evidence documents a postservice left eye disability and a bilateral hearing loss disability, the evidence relates to an unestablished fact necessary to substantiate the claims, namely, evidence of current disability. The lack of such evidence was the basis for the previous denial of the claims. As the additional evidence is new and material under 38 C.F.R. § 3.156, the claims of service connection are reopened. Whereas here the Board has reopened the claims, and the evidence of record is insufficient to decide the claims on the merits, further development is needed, which is addressed in the remand. ORDER As new and material evidence has been presented, the claim of service connection for vision loss of the left eye is reopened and to this extent only, the appeal is granted. As new and material evidence has been presented, the claim of service connection for a bilateral hearing loss disability is reopened and to this extent only, the appeal is granted REMAND When service treatment records are lost, VA has a heightened duty to assist in developing a claim, to explain its decision, and to consider the applicability of the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). On the claim of service connection for loss of vision of the left eye, the record is incomplete as additional evidence has been identified, namely, records of a private ophthalmologist, regarding the Veteran's legal blindness. Also the evidence of record is insufficient to decide direct service connection and further development under the duty to assist is needed. On the claim of service connection for a bilateral hearing loss disability, further development under the duty to assist is needed to address the Veteran's assertions. Accordingly, the claims are REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records of a private ophthalmologist, regarding the Veteran's legal blindness. 2. Afford the Veteran a VA examination by ophthalmologist or optometrist to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that any current left eye disability, including a senile nuclear sclerotic cataract and a disciform scar, first documented in 2010, is: A progression of apparent refractive error of 20/40 vision in the left eye on separation examination in 1953 without a history of injury or eye disease, or, the development of new and separate left eye condition? In formulating the opinion, the Board finds that the Veteran's testimony of left eye 20/40 vision without a history of an eye injury or disease in service is both competent and credible evidence. The VA examiner is asked to explain the medical principles relied on to reach the conclusion in the opinion and to discussion the other etiologies for developing the claimed condition other than an apparent refractive such as the Veteran's postservice occupation as a granite cutter and the Veteran's age, 78, when the claimed disability was first documented in 2010. The Veteran's file must be made available to the VA examiner. 3. Afford the Veteran a VA examination by an audiologist, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the current bilateral hearing loss disability is the result of noise exposure in service from 1951 to 1953 or, the development of new and separate condition? In formulating the opinion, the Board finds that the Veteran's testimony about noise exposure as a heavy equipment operator on an airfield in service is both competent and credible evidence. The VA examiner is asked to explain the medical principles relied on to reach the conclusion in the opinion and to discussion the other etiologies for developing the claimed condition other than noise exposure in service such as an ear infection shortly after service and Veteran's postservice occupational noise exposure in textiles and as a granite cutter and the Veteran's age, 78, when the claimed disability was first documented in 2010. The Veteran's file must be made available to the VA examiner. 4. After the development is completed, adjudicate the reopened claims on the merits, considering all the evidence of record. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case 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). The claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs