Citation Nr: 1327530 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 04-41 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from December 1967 to October 1969. These claims come before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the course of this appeal, the RO characterized both issues on appeal as requiring new and material evidence to reopen previously denied claims. Based on the procedural history that follows, the Board has since recharacterized the hearing loss claim as requiring consideration on a de novo basis. The RO denied this claim multiple times in the past prior to the Veteran filing his most recent petition to reopen the claim in March 2009. In a rating decision dated October 2007, which the Veteran did not appeal, the RO denied the claim, in part, due to an absence of evidence showing that hearing loss was incurred in service. The RO associated VA treatment records with the claims file, including an April 2008 medical provider's opinion linking the hearing loss to the Veteran's active service. Because this evidence was dated within a year of notification of the October 2007 rating decision and it pertains to the basis of the denial, under 38 C.F.R. § 3.156(b) (2012), it is considered new and material evidence to reopen the hearing loss claim and the Veteran's March 2009 hearing loss claim may be considered on a de novo basis. See also Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (under 38 C.F.R. § 3.156(b), VA must evaluate submissions received during the relevant period and determine whether they contain new evidence pertaining to a pending claim, whether or not the relevant submission might otherwise support a new claim); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (new and material evidence under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" under 38 C.F.R. § 3.156(a)). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2012. These claims are 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). VA's paperless claims processing system (Virtual VA) includes additional pertinent documents for consideration in support of these claims, but in a VA Form 21-4138 (Statement In Support Of Claim) dated May 2012, the Veteran waived his right to have the RO consider this evidence in the first instance. The claims of entitlement to service connection for hearing loss and entitlement to service connection for tinnitus on its merits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In a rating decision dated May 1996, the RO denied the Veteran entitlement to service connection for tinnitus. 2. The Veteran initiated, but did not perfect, and appeal of this denial. 3. The evidence received since May 1996 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The May 1996 rating decision denying the Veteran entitlement to service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). When a claimant is trying to establish entitlement to service connection for a disability, the VCAA notice must apprise him of all five elements of the claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In the context of a claim that has been previously denied, the notice must inform the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In informing the claimant of what evidence would be considered new and material, VA must examine the basis for the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in that denial. Id. The RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). In the context of a claim to reopen, VA's duty to assist is limited to the following: (1) making reasonable efforts to obtain non-Federal department or agency records; (2) obtaining records in the custody of a Federal department or agency; and (3) obtaining VA and military records. 38 C.F.R. § 3.159(c)(1), (2) and (3). Notice The RO provided the Veteran VCAA notice on this claim by letters dated May 2009, July 2009, August 2009 and October 2009. The RO sent all these letters before initially adjudicating the claim. These letters are therefore timely. These letters satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate his claim and identify the type of evidence that would best do so. They include all necessary information on disability ratings and effective dates in the event service connection is granted. They notify the Veteran of the basis of the last denial of his claim. They identify the evidence the RO requested and/or received in support of the Veteran's claim and the evidence it was responsible for securing. They indicate that the RO will make reasonable efforts to assist the Veteran in obtaining any other outstanding evidence provided he identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. VA provided the Veteran further notice in May 2012, during his hearing at the RO before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ chairing a hearing must satisfy two duties to comply this VA regulation, consisting of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, the VLJ did both by questioning the Veteran regarding his in-service and post-service noise exposure and current complaints and eliciting testimony regarding whether there was any outstanding evidence to submit to substantiate his claim. The VLJ specifically explained that the law required him to fully inform the Veteran of evidence that might help him build his claim. The VLJ suggested that the Veteran submit statements from individuals reflecting that he had ear problems as early as 1970, when he returned from Vietnam. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). Neither he nor his representative asserts that VA failed to comply with the VCAA's notice provisions or the requirements set forth in Bryant. Assistance The RO also satisfied its duty to assist the Veteran in the development of this claim by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to his claim, including service treatment and personnel records, post-service VA and private treatment records and information from an employer. The RO also afforded the Veteran a VA examination of his ears, during which an examiner discussed the Veteran's complaints of ringing in the ears. When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran does not assert that there are any other outstanding records that must be obtained in support of this claim. He also does not assert that the report of the VA examination is inadequate. In sum, VA has developed the issue decided here, and the Board will direct further development upon remand. II. Analysis The Veteran seeks service connection for tinnitus on the basis that it developed secondary to in-service noise exposure and/or acoustic trauma. During his hearing, he alleged that during service in Vietnam, he sustained acoustic trauma after a heavy gun fired, and he noted both ringing and bleeding ears and a bleeding nose. The Veteran asserts that he went to a medic who had nothing to treat the problem, so the Veteran forgot about it and went about his work. He further asserts that, after the incident, the ringing in his ears continued. The Veteran also alleges that he was exposed to noise as a radio teletype operator accompanying artillery batteries or companies in combat. During this time period he was reportedly subject to tracked artillery firing and mortar and rocket attacks. He alleges that he attempted to reenlist in June 1970 but was denied due to hearing loss. The Veteran contends that after service, he tested hydraulic pumps on a production line, which did not involve exposure to noise. He also contends that both a private and VA doctor have told him that his problems stem from noise-induced exposure due to artillery, not old age. The Veteran has submitted lay statements, including from siblings and an acquaintance. According to these statements, the Veteran has difficulty hearing. None address the alleged ringing in the Veteran's ears. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The RO previously denied the Veteran's claim for service connection for tinnitus in a rating decision dated May 1996. In deciding this claim, the RO considered the Veteran's service treatment records only, which include no mention of ringing in the ears. The RO found that there was no evidence of in-service treatment for tinnitus and, as such, the tinnitus was not incurred in or aggravated by active service. The RO notified the Veteran of his appellate rights, but the Veteran did not appeal the denial and the RO did not receive new and material evidence within one year of that decision. See 38 C.F.R. § 3.156(b). The May 1996 rating decision denying the Veteran entitlement to service connection for tinnitus is thus final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995). Under the provisions of 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to service records that are related to a claimed in-service event, injury, or disease. See 38 C.F.R. § 3.156(c)(i). Here, no service department records have been obtained since July 1997. Therefore, VA need not reconsider this claim. The Veteran attempted to reopen this claim by written statement received in March 2009. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2012). When determining whether 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The phrase "raise[s] a reasonable possibility of substantiating the claim" enables rather than precludes reopening, consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence on each unproven element of a claim.' Id. at 120. Therefore, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers 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. Id. The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence that has been associated with the claims file since the RO's May 1996 rating decision or which the RO did not consider in support of the May 1996 claim includes VA and private treatment records, a VA examination report, the Veteran's hearing testimony, the Veteran's and his representative's written statements, and written statements from siblings and an aquaintance. This evidence is new. It is neither cumulative, nor redundant of the evidence previously of record. It is also material. By itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate this claim. The Veteran's written statements and testimony represent a reported history of continuous ringing in his ears (tinnitus) since active service allegedly due to in-service noise exposure and the acoustic trauma described above. The medical evidence includes notations of tinnitus, allegedly manifesting first in 1969; sharp ear pain; and scarring of the ears bilaterally, findings that support the Veteran's reported in-service history and suggest that the tinnitus could have been incurred in service. The absence of this type of evidence formed the basis of the RO's previous denial of the claim of entitlement to service connection for tinnitus. ORDER New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. REMAND 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. Obtain and associate with the claims file the Veteran's service personnel file, including any information pertaining to his alleged attempt to reenter service in June 1970 and why the attempt was unsuccessful. 2. After the above has been completed, schedule the Veteran for a VA ear diseases/audiological examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has hearing loss and/or tinnitus that is related to his active service, to include the alleged noise exposure and acoustic trauma. The following considerations will govern the examination: a. The claims folder and a copy of this remand must be available to the examiner for review in conjunction with the examination. The examiner MUST take a complete history from the Veteran as to any pre-service, in-service and post-service noise exposure and acoustic trauma and the onset, nature and progression of the alleged difficulty hearing and ringing in the ears. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. b. The examiner is advised: * The Veteran alleges that he was exposed to noise during combat in service while working as a radio teletype operator assigned to a track artillery battery. He also alleges that he suffered acoustic trauma when in close proximity to the firing of an artillery gun 175, after which he experienced ringing and bleeding in his ears and a bloody nose. He contends that he did not notice hearing loss until four months after service, when he tried unsuccessfully to reenter service. * Service treatment records include no complaints of or treatment for ringing in the ears or hearing loss. * A report of pre-induction examination conducted in October 1966 shows hearing loss, which on induction examination conducted in June 1967 was no longer evident. * The Veteran's DD Form 214 confirms that the Veteran served as a radio teletype operator as part of an artillery battery. * There are post-service diagnoses of hearing loss and tinnitus of record and also notations of sharp ear pain and scarred ears bilaterally. There are also opinions characterizing the hearing loss as noise induced and linking it to the Veteran's active service. * The Veteran is competent to report noise exposure, ringing in his ears and difficulty hearing as all are capable of lay observation. c. After a review of the examination findings and the all other evidence of record, the examiner must answer the following questions: Given the Veteran's competent assertion of in-service noise exposure, ringing in his ears and difficulty hearing, is/are the Veteran's tinnitus and/or hearing loss related to service, including any alleged noise exposure and/or acoustic trauma? An explanation must be provided for any opinion or conclusion expressed. 3. Review the examination report to ensure that it complies with these remand instructions. If it does not, return it to the examination for correction. 4. After completion of the above and any other development deemed necessary, the RO should review and readjudicate the claims on appeal, including in the first instance, the reopened claim for service connection for tinnitus. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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). These 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs