Citation Nr: 1322013	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  11-11 482	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for otitis media.

2.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran served on active duty from June 30, 1951 to August 10, 1951.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In his Substantive Appeal (VA Form 9) the Veteran requested a Board videoconference.  In correspondence dated in April 2013 he withdrew his request for a video hearing.  In May 2013 the Veteran submitted additional evidence accompanied by a waiver of initial RO consideration.  

Please note 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 claims for service connection for otitis media and bilateral hearing loss, both under a merits analysis, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  An April 2003 rating decision declined to reopen the Veteran's claims of service connection for otitis media and for bilateral hearing loss.  The Veteran did not file a timely notice of disagreement, and evidence received within one year was not new and material. 

2.  Certain evidence received since the April 2003 rating decision is not cumulative and redundant, and relates to an unestablished fact necessary to substantiate the claims of service connection for otitis media and for bilateral hearing loss. 



CONCLUSIONS OF LAW

1.  The April 2003 rating decision which denied a request to reopen claims of service connection for otitis media and bilateral hearing loss is final.  38 U.S.C.A. § 7015(c) (West 2002).

2.  New and material evidence has been received to reopen the Veteran's claims for service connection for otitis media and for bilateral hearing loss.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims.  However, in light of the reopening of the claims, further discussion of the VCAA is not necessary at this point.  The matter of VCAA compliance with regard to the matter will be addressed in a future merits decision after action on the issues is undertaken as directed in the remand section of this decision.

Legal Criteria, Factual Background and Analysis

At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  Therefore, the Board will summarize the relevant evidence where appropriate.

Petition to Reopen

In an October 1997 rating decision, the RO declined to reopen the claim for service connection for otitis media because new and material evidence had not been submitted.  The RO also denied service connection for bilateral hearing loss.  The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year.  The October 1997 rating decision became final.  38 U.S.C.A. § 7015(c).  The Veteran attempted to reopen the claims, but the RO denied this request in April 2003.  The Veteran did not file a notice of disagreement.  However, it does appear that additional evidence in the form of private treatment records from Sneads Ferry Medical Clinic were received during the period just before the rating decision was issued; it does not appear from the rating decision that these records were considered.  However, these records only document pertinent treatment from 2000 to 2002; they do not include any medical opinions or comments relating the disorders to service.  In view of the fact that other post-service medical records which were already in the claims file document treatment, it cannot be said that the Sneads Ferry records add anything new to the record.  These records were not new and material.  There was also a written statement from the Veteran essentially reiterating his contentions regarding experiencing ear pain shortly after entering service.  However, the fact of ear pain soon after entry into service was already of record in the form of service treatment records documenting such treatment and discharge as a result.  The Veteran's statement was therefore not new and material.  Under the circumstances, the Board finds that the April 2003 rating decision became final.  This is the most recent final denial of the claims.

The Veteran has not again requested that his claims be reopened.  Applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108.

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted.  Id. at 1384.  See also Jackson v. Principi, 265 F.3d 1366 (Fed. Circ. 2001).

New and material evidence is defined by regulation.  See 38 C.F.R. § 3.156.  New and material 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.  38 C.F.R. § 3.156(a).

The United Stated Court of Appeals for Veterans Claims (Court) has held that the phrase raises a reasonable possibility of substantiating the claim must be viewed as enabling rather than precluding reopening.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  However, to reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).  The Board is not bound by the RO determination in the instant case that new and material evidence has not been received and it will make an independent determination in this regard.  Jackson, 265 F.3d 1366.

Evidence of record at the time of the April 2003 final rating decision featured the Veteran's service entrance examination; an August 1951 report of the medical board that determined he was unfit for service and recommended he be discharged from Naval service by reason of physical disability.  Service treatment records are to the effect that the Veteran has suffered episodes of recurrent otorrhea and otalgia since childhood.  Also of record were a March 1997 VA outpatient treatment record and audiogram; a June 1967 VA hospital summary that diagnosed chronic bilateral otitis media; an August 1967 VA hospital report that diagnosed chronic left otitis media and mastoiditis; a January 2002 private treatment report showing complaints of discharge from the right ear and the left ear intact; a February 2002 CT [computed tomography], which shows near complete opacification of the right mastoid air cells, middle ear cavity; and a February 2003 VA Medical Center (VAMC) report of chronic drainage from the Veteran ears.  

Evidence received subsequent to the April 2003 final decision a March 2003 written statement from the Veteran that symptoms of his claimed ear disorder began after he entered service; lay statements from family and friends attesting that the Veteran did not have problems with his ears prior to service; 1967 VA hospital records (duplicate); and a May 2013 letter from Dr. Abrons who opined that the delay in treating the Veteran's otitis media, caused by his train travel across country, could have caused complications from his otitis media beyond its normal expected course if treated in a timely fashion.  

The Board finds that the lay statements from family and friends and Dr. Abrons' statement do relate to an unestablished fact necessary to substantiate the Veteran's claim; they are not cumulative or redundant of evidence already of record.  The credibility of this newly submitted evidence is to be presumed.  See Justus, 3 Vet. App. 510.  Therefore the claims are reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

At this point the Board acknowledges that the issues are set forth as otitis media and hearing loss, and that these are two separate disorders.  However, there is medical evidence in the file (prior VA hospital records) which include references to the hearing loss being associated with the otitis media.  Accordingly, the Board views the evidence regarding otitis media as also material to the hearing loss claim.  Under the particular circumstances of this case, the Board finds that the new and material evidence cited above should be viewed as pertaining to both issues. 


ORDER

New and material evidence has been received to reopen the claims of service connection for otitis media and for bilateral hearing loss.  To this extent, the appeal is granted, subject to the directives set forth in the following remand section of this decision. 


REMAND

In view of the reopening of the claims, the Board believes that further development is now necessary to fully assist the Veteran with a merits adjudication of his claims.  The Board concludes that a VA examination is necessary since there is competent evidence of a current disability and such disability may have pre-existed service and was aggravated therein.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In a March 2003 written statement the Veteran noted that he received treatment for his hearing problem at the VAMC in Durham and Fayetteville in 1964 and requested that those records be obtained.  It does not appear that the RO has requested such records.  There is a note in the claims file from an employee at the Fayetteville VAMC indicating that she was working on getting the Veteran's records that were retired.  She noted that VA records show that he was in the hospital at Fayetteville from August 12, 1964 to August 24, 1964.  Actual hospital treatment records have not been associated with the claims file.  Further action in this regard is also necessary to ensure that all pertinent available records are obtained. 


Accordingly, the case is REMANDED for the following action:

(Please note, 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.  Appropriate action should be undertaken to obtain any records of treatment of the Veteran in 1964 at VAMCs in Durham and Fayetteville, to include any records of hospitalization, specifically from August 12 to 24, 1964.  

2.  The Veteran should then be scheduled for an appropriate VA examination with regard to his otitis media and bilateral hearing loss.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  After reviewing the claims file and examining the Veteran, the examiner should respond to the following:  

     a)  Was there an increase in severity of the Veteran's ear disorders (to include any associated hearing loss) during his period of service (June 30, 1951, to August 10, 1951) beyond the natural progress of the disease(s)?    

     b)  Was a separate injury/infection to the ears first manifested during his period of service (June 30, 1951, to August 10, 1951)? 

The examiner should provide a rationale for all conclusions. 

3.  In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions.  If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 

4.  Thereafter, the issues on appeal should be readjudicated under a merits analysis.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs