Citation Nr: 1315318 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 10-18 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether there is new and material evidence to reopen a claim for service connection for bilateral hearing loss, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active service from July 1964 to June 1966. He is in receipt of various decorations to include the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2009, the RO determined that new and material evidence had not been received since a prior, final and binding, March 1999 RO decision and therefore denied the Veteran's petition to reopen his claim for service connection for a hearing loss disorder. So, too, must the Board make this threshold preliminary determination, however, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. For reasons and bases that will be discussed, the Board is reopening this claim because there is new and material evidence. But rather than immediately readjudicating the claim on its underlying merits, the Board instead is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. FINDINGS OF FACT 1. The RO initially denied the claim for service connection for a hearing loss disorder in a March 1999 decision. 2. Since the March 1999 decision, evidence has been received that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate this claim; such evidence raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW The RO's March 1999 decision denying the Veteran's claim for service connection for a hearing loss disorder is final and binding on him based on the evidence then of record; however, new and material evidence since has been received to reopen this claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.1103 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist the Veteran in substantiating this claim 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). In this decision, however, the Board is reopening this claim for a hearing loss disorder on the basis of new and material evidence. So there is no need to discuss whether there has been sufficient VCAA notice to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), including insofar as apprising the Veteran of the specific reasons this claim was previously denied so he would have the opportunity to respond by providing evidence that would overcome these prior deficiencies. Service connection is granted for disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain chronic diseases (such as organic diseases of the nervous system including sensorineural hearing loss) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The RO first considered and denied this claim in a March 1999 decision. The service treatment records (STRs) indicates that there were no complaints, findings, or diagnoses of hearing loss during service. His hearing was considered normal on both the January 1964 induction examination and the June 1966 separation examination. The Veteran filed his initial claim for bilateral hearing loss in September 1998. The RO scheduled an examination but he failed to report for examination. In March 1999, the RO found that he had not submitted a well-grounded claim and denied service connection for bilateral hearing loss. The RO appropriately notified the Veteran of the decision to deny his claim in May 1999, including apprising him of his procedural and appellate rights in the event he elected to appeal, but he did not. That decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. The Board has considered the potential 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 that was pending at the beginning of the appeal period. Here, though, this regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of that earlier appeal period that is, during the one-year period after that March 1999 decision initially considering and denying this claim. See also Bond, supra; Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran filed his current petition to reopen this claim in August 2008. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" 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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The additional evidence since submitted includes VA and private audiology reports listing diagnoses of bilateral hearing loss. So, unlike when the RO previously considered and denied this claim in March 1999 on the premise this condition was not shown by evidence of record as the Veteran failed to report for his VA compensation examination, there now is at least evidence in the file confirming he has the claimed condition, which is the most fundamental requirement of claims for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this minimum level of proof, there can be no valid claim). He has also provided statements in support of the claim and, in particular, regarding the Veteran having experienced difficulty hearing since his military service. He is competent even as laymen to make this proclamation of symptoms since service, even in the absence of any contemporaneous medical evidence such as actual treatment records. And his lay statements concerning this is presumed credible, albeit just for the limited purpose of determining whether his lay statements are new and material evidence. See Justus v. Principi, 3 Vet. App. 510 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) explained that, to reopen a claim, there need only be evidence addressing one of the specified bases of the prior denial of the claim, not all of them, that the phrase "raises a reasonable possibility of substantiating the claim" is relatively low threshold and enabling rather than precluding reopening, and that the evidence in question need not be new, material, and raise a reasonable possibility of substantiating the claim (i.e., there is no third requirement for reopening claims). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. This is indeed the situation here, so the claim is reopened based on the submission of evidence establishing a current disability. ORDER New and material evidence having been received to reopen the claim for service connection for hearing loss disorder, to this extent only, the appeal is granted. REMAND Additional development is necessary before the Board may review the appeal on the merits. In light of the Veteran's medical history, the Veteran was examined by VA in March 2009. The VA audiologist found that it was less likely as not that his current hearing loss was related to military service. Although the examiner indicated that he had improved hearing thresholds at discharge than at entrance into military service, in reviewing the STRs, this does not appear to be the case at all frequencies. In fact, it appears that improvement was only shown at the 4000 Hertz frequency. On the audiometric portion of the January 1964 induction examination, the Appellant reportedly had pure tone thresholds in his right ear at 500, 1000, 2000, and 4000 Hz of -5(10), -5(5), -5(5) and 15(20) decibels, respectively; and in the left ear the pure tone thresholds were 0(15), -5(5), -5(5), and 5(10) decibels, respectively. During the June 1966 evaluation in anticipation of his discharge from service, an audiogram revealed pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hz of 0(15), 0(10), 0(10), and 0(5), in each ear. [Note: audiograms in service department records prior to October 31, 1967, and VA audiograms prior to June 30, 1966, used American Standards Association (ASA) units, so in turn have to be converted to the current International Standards Organization (ISO) units-and these are the numbers in the parentheses.]. Furthermore, the VA audiologist did not give clear rationale for her opinions. It appears that she considered it significant that there was no objective indication of hearing loss during the Veteran's service, although this, alone, is but one factor in making this important determination and not altogether dispositive of whether he now has hearing loss as a result or consequence of his service. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion. Also, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the even higher Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). Still further, in cases involving combat, as in this case, VA is prohibited from drawing an inference from silence in the STRs. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In light of these noted inconsistencies in the examiner's findings and conclusions, the case is remanded for another medical opinion to determine whether the Appellant's current bilateral hearing loss is causally or etiologically related to his combat service, instead, to other unrelated factors. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for another audiological VA examination for a medical nexus opinion concerning the etiology of his bilateral hearing loss, in particular, whether it is at least as likely as not this condition is attributable to his military service to include his combat service. In this regard, an explanation should be provided regarding the significance, if any, of any audiometic threshold shifts in service. All diagnostic testing and evaluation needed to make these important determinations should be performed. It is imperative the examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history. The examiner must discuss the rationale of the opinion regarding the etiology of his hearing loss, if necessary citing to specific evidence in the file. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on the pending claim. 38 C.F.R. § 3.655. 2. Then readjudicate the claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the claim to the Board for further appellate consideration. The Veteran 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs