Citation Nr: 1331848	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  10-12 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability, and if so, whether the reopened claim should be granted. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel





INTRODUCTION

The Veteran had active service from May 1968 to May 1970.  The Veteran is the recipient of the Purple Heart Medal, Combat Infantryman Badge, Vietnam Service Medal, and the National Defense Service Medal. 

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut.  

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.  

The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND that follows the decision below. 


FINDINGS OF FACT

1.  In a May 1994 decision, the RO denied a claim of entitlement to service connection for bilateral hearing loss; the Veteran did not appeal the decision and no pertinent evidence was received within the period for appealing the decision.  

2.  The evidence added to the record following the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim.


CONCLUSION OF LAW

The criteria for reopening the claim for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

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). 

Analysis

The Veteran's claim of entitlement to service connection for a bilateral hearing loss disability was initially denied by the RO in a May 1994 administrative decision.  Evidence considered at that time consisted of service treatment records and the Veteran's statements. 

Based on a review of the evidence, the RO concluded that service connection for hearing loss disability was not warranted because the evidence failed to show a current disability.  The Veteran was notified of the decision and his appellate rights but did not appeal.  In addition, no pertinent evidence was received within the period for appealing the decision.

In January 2009, the Veteran submitted a statement requesting that the claim of entitlement to service connection for bilateral hearing loss be reopened.  In the March 2009 rating decision on appeal, the RO denied such claim.  In the March 2010 statement of the case, the RO reopened such claim.  Notwithstanding the RO's actions, the Board must make its own determination on this matter.  Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  
 
Evidence received since the May 1994 decision includes VA outpatient treatment records dated from February 2006 through January 2009.  Significantly, the record of a January 2009 VA ear, nose, and throat consultation demonstrates the presence of bilateral hearing loss disability, as the Veteran's speech recognition test revealed 92 percent in the right ear and 88 percent in the left ear.  This evidence is not cumulative or redundant of the evidence previously of record.  Moreover, it relates to an unestablished fact necessary to substantiate the claim.  Therefore, it is new and material, and reopening of the claim is in order. 

ORDER

The Board 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

The Veteran contends that his current bilateral hearing loss disability is related to noise trauma in service.  Specifically, he alleges that he was subjected to excessive noise coincident to his duties as a weapons infantryman in Vietnam while in the United States Armed Forces.  In this regard, his DD Form 214 shows a military occupational specialty assignment in the 33rd Armor squadron, with Vietnam service from October 1968 to June 1969.  

Service treatment records include the reports of a March 1968 induction physical examination and April 1970 separation physical examination, which are negative for complaints or a diagnosis of any hearing disorder.  

Post-service records include the record of a February 2006 VA audiology consultation, which indicates a finding of mild to severe sensorineural hearing loss, bilaterally, from 3000 Hertz through 4000 Hertz.  The threshold findings were not reported; however, the examiner noted that such findings were consistent with a "degree of hearing loss," bilaterally.  The record of a January 2009 VA ear, nose, and throat consultation notes the Veteran's history of military noise exposure, as well as his history of post-service occupational noise exposure, although, with the use of hearing protection.  The physician reported that puretone testing revealed mild to moderate sensorineural hearing loss at 3000 Hertz and above for the right ear, and at 1000 Hertz and above for the left ear.  The physician further noted that the Veteran's speech recognition testing revealed 92 percent in the right ear and 88 percent in the left ear.  The physician indicated that the left ear was worse than the right ear.  The physician noted that the asymmetry in the Veteran's hearing levels could be due to retrocochlear pathology.     

VA's duty to assist a veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim.  See 38 U.S.C.A. 
§ 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  In light of the Veteran's history of noise exposure while serving as an infantryman in Vietnam, and the fact that the Veteran has never had a VA examination addressing this claim, the Board finds that the Veteran should be afforded a VA examination addressing the etiology of his current bilateral hearing loss.

Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington DC, for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain any available, outstanding records pertinent to the Veteran's claim.

2.  Thereafter, the RO or the AMC should arrange for the Veteran to be examined by an examiner with sufficient expertise to determine the etiology of his bilateral hearing loss disability.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner in conjunction with the examination. 

Any indicated evaluations, studies, and tests deemed to be necessary must be accomplished.  

Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's bilateral hearing loss originated during service or is otherwise etiologically related to any in-service disease, event, or injury.  

The examiner is instructed to accept the Veteran's exposure to noise during service as fact and to consider the Veteran to be a reliable historian.  

The rationale for all opinions expressed must also be provided.  If the required opinion cannot be provided, the examiner should explain why.

3.  The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination.  A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination.  The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim.

4.  The RO or the AMC should also undertake any other development it determines to be warranted.

5.  Then, the RO or the AMC should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims file is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded.  See 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 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).



______________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs