Citation Nr: 1331446 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-29 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for left-ear hearing loss; and, if so, whether service connection for left-ear hearing loss should be granted. REPRESENTATION Veteran represented by: Heather E. Vanhoose, Esq. WITNESSES AT HEARINGS ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from May 1948 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied the Veteran's request to reopen a previously-denied claim of service connection for hearing loss, based on a determination that new and material evidence had not been received. During the course of the appeal the RO determined that new and material evidence had been received, and thereupon readjudicated the claim on the merits as reflected in the Supplemental Statement of the Case (SSOC) issued in June 2012. However, before the Board can evaluate the merits of a previously denied claim, it must first determine whether a claimant has submitted new and material evidence with respect to that claim. Elkins v. West, 12 Vet. App. 209, 218-19 (1999). The Board has accordingly characterized the issue on appeal as shown on the Title Page. Also, the rating decision on appeal characterizes the issue simply as "hearing loss," but the development of the evidence, to include the VA examination, has exclusively been related to a left-ear hearing loss disability. To preclude prejudice to the Veteran in any future claim, and to comport with the evidence of record, the Board has characterized the issue on appeal as a claim for left-ear hearing loss. The Veteran testified before the RO's Decision Review Officer (DRO) in February 2012, and he and his Spouse testified before the undersigned Acting Veterans Law Judge in a hearing at the RO ("Travel Board" hearing) in July 2013. Transcripts of those hearings are associated with the claims file or Virtual VA. The Board's decision regarding reopening of the previously-denied claim is set forth below. The issue of service connection for hearing loss, on the merits, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In this testimony, the Veteran raised a claim of entitlement to service connection for right ear hearing loss. In the course of this appeal the RO has developed and addressed only the issue of left-ear hearing loss. The Board accordingly does not have jurisdiction to consider the issue of entitlement to service connection for right ear hearing loss, and that issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection for defective hearing in the left ear was denied in a rating decision issued by the RO in February 1988; the Veteran was notified of the denial but did not appeal. 2. Evidence received since February 1988 is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for hearing loss disability. CONCLUSION OF LAW The criteria to reopen a previously-denied claim of service connection for left-ear hearing loss are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter the Board notes the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his request to reopen the previously-denied claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2013). Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The 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. 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 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). Also, Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). 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). Evidence and Analysis The Veteran submitted an original claim for service connection for left-ear hearing loss that was received by the RO in October 1987. The claim was denied by a rating decision in February 1988, based on a determination that the Veteran's hearing loss during service was an acute and transitory condition that resolved prior to discharge from service. The Veteran was notified of the decision but did not appeal, and he did not submit new evidence within the appeal period that was material to the issue; see 38 C.F.R. § 3.156(b). The February 1988 rating decision is accordingly final. See 38 C.F.R. § 20.302. Evidence of record at the time of the February 1988 rating decision consisted of the Veteran's claim and service treatment records. Evidence received since the February 1988 rating decision includes private and VA medical treatment records that show hearing loss to a degree considered disabling within the criteria of 38 C.F.R. § 3.185, as well as eyewitness lay evidence asserting that the Veteran did not have a hearing loss disability prior to service but had hearing loss since discharge from service. The new evidence cited above establishes the existence of a current disability, which addresses the first element of service connection, and also presents evidence of in-service incurrence of a disability, which addresses the specific reason the claim was previously denied. The new evidence is accordingly material to resolution of the issue on appeal. Based on the evidence and analysis above, the Board finds the criteria to reopen the previously-denied claim are met. The Veteran's claim is granted to that extent. ORDER New and material evidence having been received, the request to reopen the claim for service connection for left-ear hearing loss is granted. REMAND The Board finds that further development is required before the appeal for service connection for left-ear hearing loss can be adjudicated. The Veteran had a VA audiological evaluation in June 2012 in which he was shown to have sensorineural hearing loss to a degree considered disabling under 38 C.F.R. § 3.385. The audiologist stated an opinion that the Veteran's left-ear hearing loss was not related to service, but the Board finds this opinion is deficient for two reasons. First, the audiologist presumes the Veteran's hearing loss existed prior to service, based on statements the Veteran made during service that are recorded in service treatment records; however, in the absence of documented hearing loss at enlistment, the Veteran is presumed to have been sound on enlistment, so the audiologist's opinion is based on a faulty premise. Second, the audiologist discusses only whether a relationship exists between current hearing loss and a single episode of acoustic trauma reported by the Veteran, whereas the service treatment record shows treatment for hearing complaints prior to that incident (in fact, the VA audiologist cited to those incidents but did not incorporate them into her opinion). Because the audiological evaluation is inadequate for appellate review, remand is required at this point to obtain an adequate medical opinion. 38 C.F.R. § 3.159(c)(4). The Veteran testified that he has scarring in his inner left ear, which connotes an inner ear injury, and the service treatment record raises the possibility that the Veteran incurred an inner ear disease process during service. Accordingly, the opinion of a physician, such as an otolaryngologist, would be more probative than that of an audiologist. Accordingly, this case is REMANDED to the RO for the following actions: 1. The Veteran should be afforded examination by an otolaryngologist or other physician with appropriate expertise to determine the etiology of any current hearing loss disability. The claims folder should be made available to and reviewed by the examiner, and any indicated studies should be performed. Based on examination of the Veteran and review of the claims file, the examiner should state an opinion with respect to any current hearing loss disorder as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that such disorder is due service. The examiner must presume that the Veteran was sound at the time he entered service (i.e., that he did not have a preexisting left ear hearing loss). The examiner is asked to address the concussive trauma cited by the Veteran as having occurred in September 1950, and also to address the hearing loss symptoms/complaints that were documented in 1949-1950. The rationale for all opinions expressed should be provided. If it is not possible to state an opinion without resorting to speculation, the reasons that is so should be provided. 2. Then, the RO should readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should 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 by the RO. 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. 2013). ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs