Citation Nr: 1333508 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-43 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1966 to February 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran expressed his disagreement with the decision in July 2010, and the RO issued him a statement of the case in October 2010. Thereafter, the Veteran perfected his appeal with the filing of a substantive appeal in October 2010. The reopened claim of service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In a January 2004 rating decision, the RO denied reopening the Veteran's claim of service connection for hearing loss, which had previously been denied by the Board in a March 2003 decision that found his hearing loss pre-existed, and was not shown to have permanently worsened as a result of, service; after the Veteran was notified of the adverse determination and of his procedural and appellate rights in January 2004, he did not appeal the rating decision, and new and material evidence was not received within one year; the January 2004 rating decision became final by operation of law based on the evidence of record at the time. 2. Additional evidence received since the January 2004 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for hearing loss and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for hearing loss may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board's decision to reopen the claim of service connection for hearing loss is favorable to the Veteran, no further action is required to comply with the VCAA. Procedural History and Evidence Previously Considered In a January 2004 rating decision, the RO denied the Veteran's application to reopen a claim of service connection for hearing loss on the basis that new and material evidence had not been presented to reopen the claim. Previously, the Board, in a March 2003 decision, had denied the Veteran's claim of service connection for hearing loss, finding that such disability pre-existed his service and was not shown to have permanently worsened as a result of service. In a letter, dated in January 2004, the RO notified the Veteran of the adverse determination and of his procedural and appellate rights. The notice included the Veteran's right to appeal the adverse determination by notifying the RO of his intention within one year from the date of the letter. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the January 2004 rating decision became final by operation of law, except the claim may be reopened if new and material evidence is received. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.156. The evidence of record at the time of the January 2004 rating decision included the following records. Service records showed that the Veteran served on active duty from February 1966 to February 1968. His military occupational specialty was an airframe repairman. The service pre-induction examination, dated in March 1965, shows that an audiometric examination was conducted, but there are two sets of results reported. The first set of results (written within the boxes provided for such on the examination form) revealed pure tone threshold levels, in decibels, (converted from ASA to ISO (ANSI) units) as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 xx 15 LEFT 25 20 20 xx 15. The first set of results, however, is crossed out, and the second set of results (written outside of the boxes provided for such on the examination form) revealed pure tone threshold levels, in decibels, (converted from ASA to ISO (ANSI) units) as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 45 xx 30 LEFT 10 45 60 xx 35. The latter set of results appear to have been taken from an audiogram slip, which is of record and which is dated in February 1966, on the day of the Veteran's enlistment. (There is no audiogram slip that reflects the first set of audiometric results.) Speech audiometry testing to assess recognition ability was not performed. The Veteran's "PULHES" physical profile, which initially appears to have been assigned a "1" (reflective of high level of fitness), perhaps at the time of the pre-induction examination in March 1965, was subsequently altered or changed (i.e., the number "1" was overwritten). Such alteration - evidently made at the time of the February 1966 audiogram - reflects a "2" for hearing (reflective of limitations necessitating assignment restrictions versus a "4" which reflects a medical condition or physical defect that is below the level of fitness for retention in the military service). On a Report of Medical History in March 1965, the Veteran denied any ear trouble. Subsequent service treatment records are negative for any complaints and/or findings of hearing problems. On the January 1968 separation physical examination, the report shows the Veteran's hearing was recorded as 15/15, bilaterally, spoken and whispered voice, with a physical profile of "1." On a Report of Medical History in January 1968, the Veteran specifically denied any hearing loss. Evidence at the time of the January 2004 rating decision also includes numerous post-service private audiological reports, dated from February 1968 to October 2002, showing that the Veteran had hearing loss disability. However, the earliest post-service record, dated in February 1968 (one week after the Veteran's military discharge), is an uninterpreted pre-employment audiogram. Additionally, there are reports prepared by his private physician, Dr. Stanley Lang, who in a February 2000 statement indicated that the Veteran had been his patient since 1983 and that he had had significant sensorineural hearing loss that had gradually deterioration over time. Dr. Lang, upon reviewing the Veteran's induction audiogram, stated that it revealed hearing loss so significant that he was surprised that the Veteran was deemed fit for military service. Dr. Lang further stated that he had reviewed the February 1968 pre-employment audiogram from Rockwell International, commenting that it was "so fraught with examiner error that threshold determination [was] impossible." Nevertheless, he added that overall it did appear to show some degree of hearing loss. Audiograms from Dr. Lang, dated in July 1983 and September 1999, indicate that the Veteran had longstanding hearing loss, and that the Veteran was fitted with hearing aids in 1983. In a September 2000 report, Dr. Lang reiterated that the Veteran had significant sensorineural hearing loss that had gradually deteriorated over time and was now severe. At a June 2002 Board hearing, the Veteran testified that he was not aware of having any problem with his hearing at service entrance; that he was not provided with any ear protection during service; that when he became employed immediately after service with Rockwell International in February 1968, he underwent a hearing test and was told that he exhibited a severe hearing loss; that he was originally treated for his hearing loss in 1980 but was told at that time by a private physician that he could not be fitted for hearing aids; and that he began wearing hearing aids in 1983. The Veteran described his exposure to noise in service and acknowledged that he was also exposed to acoustic trauma following his discharge, but stated it was not as significant and he had worn hearing protection. His wife testified that prior to service the Veteran had no hearing problems, but that since that time he had impaired hearing. A December 2002 VA audiological examination report indicates that the Veteran had moderate to severe sensorineural hearing loss in both ears. After reviewing the claims file, the examiner concluded that the Veteran's significant hearing loss was present prior to induction into service; that it was not likely that the Veteran's military service contributed greatly to the pre-existing loss causing additional hearing loss; that a significant change in hearing was indicated after service from February 1968 to July 1983 (referring to audiograms for that period); and that no injuries during service were reported by the Veteran to indicate or contribute to hearing loss. In a September 2003 statement, Dr. Lang clarified his earlier statements and impressions as to the probable cause and onset of the Veteran's hearing loss. He indicated that it was his intention to point out that there was "little to no chance" that the Veteran would have been accepted for service with the hearing loss that was noted on the induction audiogram; thus, he did not believe the Veteran "had any significant hearing loss upon entry to the military." Current Claim to Reopen As the unappealed January 2004 rating decision became final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C.A. §§ 5108, 7105. Where, as here, a claim of service connection has previously been denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). "New 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The records received since the January 2004 rating decision include a private report of an audiological examination conducted in May 2010 by Dr. Woodard, and testimony of the Veteran and his wife. In his report, dated in June 2010, Dr. Woodard (an audiologist) indicated that he performed a May 2010 audiological examination of the Veteran. He relayed the Veteran's history of having worked as an aircraft repairman, mainly on helicopters, during service which involved very intense levels of noise without hearing protection. Following diagnostic testing, he found the Veteran had severe to profound bilateral sensorineural hearing loss, which he stated was at least as likely as not due to the Veteran's military duties that exposed him to acoustic trauma. He explained that such trauma was a common cause of the Veteran's type of hearing loss, which was permanent and non-reversible with very few exceptions. He also asserted that sensorineural hearing loss can remain the same, that is, become stable, or it can get worse, but that it cannot get better or improve. At a January 2013 Board hearing, the Veteran testified that he was an aircraft mechanic during service, and thus he must have had good hearing based on being assigned to such a job. He stated that the first time he was ever informed of having hearing loss was after he took an employment audiogram right after service. The Veteran's wife testified that she married the Veteran before he entered service and that she first noticed a difference in the Veteran's ability to hear right after he returned from Vietnam. It was argued by the Veteran's representative that this case was one pertaining to direct service connection and not one involving a preexisting hearing loss condition that was or was not aggravated during service, based in part on Dr. Lang's opinion (of September 2003) wherein he asserted that the Veteran did not have any significant hearing loss upon entry into service. When considered with the previous evidence of record, the additional statement of a new doctor (audiologist) and the additional statements of the Veteran and his wife constitute new and material evidence to reopen the claim of service connection for hearing loss, particularly in light of the low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App. 110 (2010). This is because the evidence relates to an unestablished fact necessary to substantiate the claim, namely, evidence that the Veteran's hearing acuity worsened during service attributable to his duties therein, as compared with his hearing acuity prior to service. In other words, the additional evidence received since the 2004 rating decision, when viewed in the context of the evidence already of record, raises a reasonable possibility of substantiating the claim. The RO has previously denied the claim on the basis that a pre-existing disability was not aggravated during service, but the Veteran and his wife have argued in part that the Veteran did not have a pre-existing hearing problem and only discovered the onset of a hearing problem after exposure to noise during service. In that regard, it is acknowledged that the credibility of the evidence, particularly the statements offered by the Veteran, is to be presumed. It is also noteworthy that in his testimony the Veteran indicated that he would not have been given the job of aircraft mechanic if he had hearing loss upon enlistment, and this point seems to be especially reliable given that his induction examination reflected a physical profile of "2" that required limitations necessitating assignment restrictions. Furthermore, the statements of Dr. Woodard, relating that the Veteran's type of hearing loss was not a condition that could get better or improve, tend to support the Veteran's contentions that he did not have the level of hearing loss on enlistment that was indicated on an audiogram at that time, because his separation examination did not reflect any hearing impairment and he was discharged with a physical profile of "1." In other words, Dr. Woodard's report, in which he concluded that the Veteran's current hearing loss was attributable to noise exposure during service, appears to call into question the validity of the results of the enlistment audiogram, dated in February 1966. As the additional evidence received is both new and material, the claim of service connection for hearing loss must be reopened. ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is granted. REMAND Prior to considering the claim of service connection for hearing loss on the merits, further development of the record is necessary to comply with VA's duty to assist in the development of facts pertinent to the claim. 38 C.F.R. § 3.159. The Veteran should be afforded a VA examination to reconcile the inconsistencies and conflicting opinions in the record regarding the likely onset of the Veteran's hearing loss, to include whether the Veteran's hearing acuity may have worsened during or as the result of service. The Board notes that audiometry results for entry into service (i.e., the audiogram dated in February 1966), which show definite hearing loss according to VA disability standards, were inconsistent with the less reliable spoken/whispered voice tests conducted upon separation in January 1968, which do not reflect any hearing impairment. In fact, the initial set of audiometry results on enlistment, presumably reported in March 1965, which are crossed out, are more consistent with the separation examination findings. Dr. Lang cast doubt upon the validity of the February 1966 audiogram findings, and has indicated that the February 1968 pre-employment audiogram conducted just after the Veteran's separation appeared to show some degree of hearing loss. Dr. Woodard opined that the onset of the Veteran's current hearing loss was during service due to noise trauma, and noted the Veteran's type of hearing loss was of the type that could only remain the same or get worse but could not improve. The VA examiner in December 2002 believed the Veteran's hearing loss pre-existed service and did not likely worsen therein. As the etiology of the Veteran's current hearing loss is undetermined, given the various opinions favorable and unfavorable to the Veteran's claim, the evidence of record is insufficient to decide the claim, and a VA medical examination and a medical opinion are needed. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Board notes that in an August 2012 supplemental statement of the case, the RO cited to an electronic review of additional VA outpatient records from three different VA medical centers, encompassing the period from December 2002 to August 2012. As the most recent treatment records on file are dated in February 2012, the RO should ensure that the Veteran's claims file (whether his paper claims file or his "electronic" file on Virtual VA) contains all updated records. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file, all VA records relative to the evaluation and treatment of the Veteran for hearing loss dated beginning in February 2012. 2. Afford the Veteran a VA audiology examination to determine the most likely etiology of his current hearing loss. Based on examination/interview of the Veteran and review of the record, the examiner is asked to render an opinion as to whether it was at least as likely as not (a 50 percent or better probability) that his current hearing loss was incurred in or aggravated during his period of service from February 1966 to February 1968? In rendering the opinion, the examiner should also address the following question, reconciling the inconsistencies and conflicting opinions of record: did the Veteran's hearing loss pre-exist his service enlistment, and if so, was the hearing loss aggravated by service (that is, did it undergo an increase in severity beyond natural progression)? The entire record must be reviewed by the examiner in conjunction with the examination, and all opinions expressed must be supported by complete rationale. The examiner is asked to consider, and comment where necessary, upon the following. The Veteran's military occupational specialty was an airframe repairman. The service pre-induction examination report shows two sets of audiometry results, with the first set (showing normal hearing acuity according to VA standards for hearing loss disability under 38 C.F.R. § 3.385) crossed out and replaced by a second set from a February 1966 audiogram (showing hearing loss in both ears by VA hearing loss disability standards). He was eventually given a physical profile of "2" for hearing (reflective of limitations necessitating assignment restrictions). There are no complaints or findings of hearing problems during service, and on the January 1968 separation examination, the Veteran's hearing was 15/15 for spoken and whispered voice (the Veteran denied any hearing loss at that time). He was given a physical profile of "1" for hearing (reflective of a high level of fitness). After service, the Veteran underwent a pre-employment audiogram in February 1968. Other private audiograms, which are dated from 1983 and were obtained from Dr. Lang, evidently show longstanding hearing loss. In statements, Dr. Lang did not believe the Veteran had significant hearing loss upon entry into service, and felt the February 1968 pre-employment audiogram showed some hearing loss. A VA examiner in December 2012 concluded that the Veteran had significant hearing loss prior to service, that the military did not likely cause additional hearing loss, and that there was significant change in hearing after service as indicated by audiograms from February 1968 to July 1983. In a report dated in June 2010, Dr. Woodard related the Veteran's bilateral sensorineural hearing loss to his military duties involving acoustic trauma, explaining that such type of hearing loss can remain stable or get worse but could not get better or improve. In statements and testimony, the Veteran and his wife have asserted that the Veteran had no hearing problems upon entering service but that exposure to noise during service led to problems that persisted to the present. The Veteran stated that he did not have hearing protection during service but he did after service. He maintained that he was first told of hearing loss after he took a pre-employment audiogram in February 1968. 3. The RO should then review the record, and readjudicate the claim of service connection for hearing loss (on a de novo basis). If the benefit sought remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs