Citation Nr: 1330812 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-11 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss disability, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. An April 1996 rating decision denied the Veteran's original claim seeking service connection for bilateral hearing loss; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. Evidence received after the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW New and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, 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(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). II. Factual Background and Analysis In April 1996, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for bilateral hearing loss based on its determination that the evidence failed to show that his hearing loss was incurred in or aggravated by active duty. Although notified of this decision that same month, the Veteran did not appeal the decision. In addition, no pertinent evidence was received within the appeal period. In the July 2011 rating decision on appeal, the Veteran filed a claim to reopen his claim seeking service connection for bilateral hearing loss. In October 2011, the RO issued a rating decision which reopened the claim for service connection for bilateral hearing loss and then denied the claim on the merits. The evidence that was of record at the time of the April 1996 rating decision included the Veteran's service treatment records and private treatment records, dated from March 1972 to August 1995. An August 1995 private audiological evaluation revealed findings of bilateral hearing loss disability. See 38 C.F.R. § 3.385. Evidence received since the RO's April 1996 rating decision includes the report of a QTC audiological examination performed in August 2011 and an addendum medical opinion, dated in September 2011. The QTC examination report includes a summary of the Veteran's in-service and post service noise exposure. It also reflects current audiological findings of bilateral hearing impairment that qualifies as a disability for VA compensation purposes under 38 C.F.R. § 3.385. The QTC examiner provided a medical opinion linking the Veteran's current tinnitus to the Veteran's history of noise exposure as a heavy vehicle operator during his military service. In the supplemental opinion, the QTC examiner opined that it was less likely than not that the Veteran's current hearing loss is related to his history of hazardous noise exposure while serving as a heavy vehicle driver. In support of this opinion, the QTC examiner noted that the Veteran's discharge examination revealed normal hearing, and that his post-discharge history is significant for hazardous noise exposure. Despite the examiner's negative opinion, this evidence raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. The QTC examination establishes that the Veteran was exposed to hazardous noise during his military service. Moreover, the rationale provided in support of the QTC opinion on the Veteran's current bilateral hearing loss is in error. As discussed in more detail below, the in-service audiological evaluation conducted pursuant to the Veteran's May 1963 separation examination reflects some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993)(Normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of hearing loss.). Accordingly, VA's duty to assist has been triggered by the medical opinion provided. New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. ORDER Having determined that new and material evidence has been received, reopening of the claim for entitlement to service connection for bilateral hearing loss disability is granted. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran served on active duty in the Army from August 1960 to August 1963. His enlistment examination, performed in August 1960, disclosed that his ears were normal and that his hearing acuity was 15/15, bilaterally, on whispered voice testing. An in-service treatment report, dated in February 1960, notes the Veteran's complaints of right ear ache. His May 1963 separation examination disclosed that his ears were normal. An audiological evaluation performed at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 20 (30) - 15 (20) LEFT 15 (30) 15 (25) 15 (25) - 15 (20) (Note: The July 1962 audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). On a medical history report, completed in connection with his separation examination, the Veteran denied having a history of running ears or ear trouble. After reviewing the Veteran's claims file, the Board finds the August 2011 QTC medical opinion to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran's entrance examination revealed normal hearing on whispered voice testing, his separation examination revealed some hearing loss in both the right and left ears. Under these circumstances, the Veteran must be provided with a new VA examination to determine the etiology of his bilateral hearing loss. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Arrange for the Veteran to be afforded an examination by an examiner with sufficient expertise to determine the etiology of the Veteran's bilateral hearing loss disability. The claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder must be made available and reviewed by the examiner. Based upon the examination results and the review of the Veteran's pertinent history, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's hearing loss disability in each ear is related to noise exposure and/or any other incident of the Veteran's active service For purposes of the opinion the examiner should consider the Veteran to be a credible historian and should accept as fact that normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of hearing loss. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If a requested opinion cannot be required without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs