Citation Nr: 1316722 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-08 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1973 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO) that declined to a claim of service connection for bilateral hearing loss. In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. In January 2013, additional evidence was received (and was not addressed in a supplemental statement of the case SSOC)). Because this evidence is not relevant to the matter at hand (it does not include any opinion or information pertaining to a nexus between the Veteran's current hearing loss and service), it does not require referral to the Agency of Original Jurisdiction for their initial consideration. The question of whether new and material evidence has been received to reopen a claim that was previously finally denied must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The matter of service connection for bilateral hearing loss, on de novo review, is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. An unappealed September 2001 rating decision confirmed an earlier (July 2001) denial of service connection for bilateral hearing loss, based essentially on a finding that such disability was not shown to be related to the Veteran's service. 2. Evidence received since the September 2001 rating decision includes evidence not of record at the time of that decision, suggests the Veteran's bilateral hearing loss may be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants that portion of the appellant's claim that is being addressed (i.e., reopens the claim), there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Historically, a July 2001 rating decision denied the Veteran's claim of service connection for bilateral hearing loss based essentially on a finding that such disability was not manifested in, or shown to be related to, his service. He submitted additional evidence and a September 2001 rating decision readjudciated the matter and confirmed the denial. He was notified of the September 2001 rating decision and of his appellate rights. He did not file a notice of disagreement with that decision, and it became final based on the evidence of record at the time of the decision. It is the last final decision in the matter. 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. 38 U.S.C.A. § 7105. 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. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss (SNHL)) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The evidence of record in September 2001 included: * The Veteran's STRs (which do not mention hearing problems, and include June 1973 and March 1976 audiometry which found normal hearing); * Postservice treatment records, including a May 2001 VA audiology consult, which noted that puretone test results indicated a moderate to moderately-severe sensory loss through the speech range frequencies bilaterally; word recognition was fair at a slightly loud presentation level in each ear; * A lay statement from P. L. which indicated the Veteran had postservice occupational work as a truck driver; and * A September 1998 employee hearing test record which included audiometry noting hearing loss. Evidence received subsequent to the September 2001 rating decision includes: * A May 1995 audiological evaluation from Smith's Hearing Aids, which again showed the presence of hearing loss bilaterally. * Additional postservice treatment records including a June 2009 VA audiological evaluation, when the Veteran was refitted for hearing aids. * A November 2012 VA audiology note including an opinion that the onset of the Veteran's hearing loss appears to have happened after 1976. * September 2012 sworn Travel Board hearing testimony from the Veteran and lay statements from the Veteran and his wife. The Veteran testified that his hearing was injured by a grenade blast during basic training. He also testified that he told doctors on separation examination that he had a problem with his hearing. In a December 2012 statement, he asserted that his STRs do note some hearing loss upon discharge from service, and that hearing loss only gets worse with time. He also stated that his hearing loss occurred well before he was exposed to any noise as a truck driver. His wife's statement noted that his hearing was damaged in service. * A VA examination report received in January 2013. The Board finds that the evidence received since the September 2001 rating decision is new and material because it was not before agency decision-makers at that time, and directly addresses the unestablished fact necessary to substantiate the Veteran's claim of service connection for bilateral hearing loss. Specifically, the claim was previously denied based essentially on a finding that the Veteran's hearing loss was not shown to be related to his service. Evidence received since the September 2001 rating decision includes sworn testimony by the Veteran and lay statements by the Veteran and his wife. When taken at face value, as is required when determining solely whether to reopen a previously denied claim, this additional evidence is competent evidence (as laypersons can observe diminished hearing acuity) that relates to the matter of a nexus between the Veteran's current bilateral hearing loss and his service, and raises a reasonable possibility of substantiating the claim. See also Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."). Thus, the additional evidence received is new and material and is sufficient to reopen the claim of service connection for bilateral hearing loss. De novo review of the claim is addressed in the remand below. ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is granted. REMAND The RO denied the Veteran's claim of service connection for bilateral hearing loss on the basis that new and material evidence had not been received to reopen a prior final decision. The decision above reopens such claim, finding that new and material evidence has been received. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from adjudication of the claim. As the RO has not considered the Veteran's claim of service connection for bilateral hearing loss de novo, and the Veteran has not waived his right to such RO consideration, the Board finds it necessary to remand such matter for that purpose. In conjunction with the de novo readjudication of the Veteran's claim of service connection for bilateral hearing loss, the RO must arrange for all further development indicated, to include (but not be limited to) that ordered below. Specifically, another medical opinion is necessary. While the record includes a VA medical opinion in the matter, that opinion did not take into account the lay statements alleging onset of hearing loss in service and continuity since. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for all further development needed for de novo review of the Veteran's claim, to include forwarding the Veteran's record to an audiologist for a medical opinion as to whether his hearing loss disability is related to his service/noise trauma therein. The examiner should address any credibility issues raised by the record. Based on the factual evidence of record, the consulting audiologist should opine as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's bilateral hearing loss disability is related to his service, to include as due to noise trauma therein. The examiner must explain the rationale for the opinion, citing to supporting factual data. 2. The RO should then re-adjudicate (de novo) the reopened claim of service connection for bilateral hearing loss. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs