Citation Nr: 1335429 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-27 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss disability, and if so, whether service connection is warranted for the claimed disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from January 1959 to December 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milawukee, Wisconsin. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The issue of entitlement to service connection for bilateral hearing loss disability being remanded 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. FINDINGS OF FACT 1. In an unappealed September 2004 rating decision, the Veteran was denied entitlement to service connection for bilateral hearing loss disability. 2. The evidence associated with the claims file subsequent to the September 2004 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability. 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 that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim to reopen his claim of entitlement to service connection for bilateral hearing loss disability. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 § Supp. 2013) or 38 C.F.R. § 3.159 (2013). Generally, a claim that has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 § Supp. 2013). The exception to this rule 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. 38 U.S.C.A. § 5108 (West 2002 § Supp. 2013). New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence or 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) (2013). The language of 38 C.F.R. § 3.156(a) created a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" should be viewed as "enabling rather than precluding the reopening." 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). 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 Veteran originally filed his claim for entitlement to service connection for bilateral hearing loss disability in November 2003. In a September 2004 rating decision, the RO denied entitlement to service connection for bilateral hearing loss disability based on a finding that the evidence showed no permanent disability before 1983, no bilateral hearing loss disability existed in-service, and there was no continuity of evidence to relate the present hearing loss complaints to the Veteran's active service. The Veteran did not appeal that decision. The pertinent evidence of record at the time of the September 2004 rating decision included the following: the Veteran's service medical records; private treatment records from Avada Auditory and Hearing Care and Bluemound Medical Center; a VA examination from September 2004; statements from the Veteran; and a private examination report. The pertinent evidence that has been received since the October 2001 rating decision consists of: the Veteran's statements indicating that he has experienced back pain ever since his active service; February 2004 private medical records from the Veteran's chiropractor, Dr. L., which show that Dr. L. diagnosed the Veteran with muscle spasm, spondylolisthesis, radiculitis, and segmental dysfunction; an August 2004 lumbar spine Magnetic Resonance Imaging (MRI), which showed degenerative changes, spinal canal narrowing as a result of congenital stenosis, and bulging disc; February 2005 treatment records from the Portneuf Medical Center, where the Veteran was seen on an emergency basis after injuring his back at work, and where he attended physical therapy for several months following the injury; a September 2010 X-ray, which showed degenerative disc and joint disease; and a February 2011 letter from Dr. L., stating that the 2004 full spine radiographs showed degenerative bone spurs and what appears to be "an old compression fracture at the L1 vertebrae primarily at the anterior portion." The Board finds that the statement from the Veteran's private physician indicating that his low back problems may be the result of an old compression fracture and the Veteran's statements that he has had back pain since active service are new and material. Those records show that the Veteran has been diagnosed with a current low back disability. The Veteran's claim for service connection was previously denied, in part, based on a lack of a diagnosis of a current disability, which is now present. In this regard, the Board finds that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating a claim. Accordingly, reopening of the claim of entitlement to service connection for a bilateral hearing loss disability is in order. ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is granted. REMAND The Board finds that additional development is required before the Veteran's claim for entitlement to service connection for bilateral hearing loss disability is decided. The Veteran has asserted that he has bilateral hearing loss disability as a result of hazardous noise exposure sustained during service. The Veteran has asserted that he has bilateral hearing loss as a result of occupational noise exposure sustained while serving in an artillery unit in Germany and that he suffered hazardous noise exposure in active service when exposed to shelling from large-caliber guns, rockets breaking the sound barrier as they passed at low altitude, the noise of warheads launching, and rockets exploding. The Veteran reported that he was not provided hearing protection during his duties. The Veteran's DD 214 lists his Military Occupation Code (MOS) as radio operator. The Board concedes acoustic trauma during service, as the RO has granted service connection for tinnitus based on such exposure. A review of the Veteran's service medical records showed that the Veteran's hearing was measured at the January 1959 entry examination by a "whisper test," on which the Veteran scored a 15 out of 15. The December 1962 separation examination also showed that the Veteran was administered a "whisper test", on which he also scored a 15 out of 15. No audiometer testing results exist for either examination. The Veteran's service medical records contain an undated Maico Audiogram, which appears to show raw data that appears to reveal positive findings. In addition, while there is no indication that the Veteran was afforded an audiogram at the time of his separation examination in December 1962, the Veteran has reported that he had continued to experience hearing loss since his separation from active service, and the Veteran is competent to report when his symptoms of hearing loss began and that they have continued since his active service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in this regard. VA records from April 2009, June 2009, and December 2009 reflect a diagnosis of bilateral hearing loss and show that in April 2009, the Veteran was being fitted for hearing aids because of his bilateral hearing impairment. In September 2004, the Veteran was afforded a VA examination. At that time, the Veteran reported that he had bilateral hearing loss as a result of occupational noise exposure sustained while in active service. The Veteran reported that he experienced bilateral hearing loss since active service. He stated that he had greatest difficulties hearing in background noise or when the spearker is at a distance. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 3000-4000 Hz. The examiner stated that the bilateral hearing loss was not likely related to the Veteran's active service. The examiner did not use the correct standard. The examiner relied on the absence of evidence in the Veteran's service medical records and the claims file (pre-1983, when the Veteran was diagnosed with bilateral hearing loss) to provide a negative opinion. Consequently, the Board finds that this opinions is inadequate. The United States Court of Appeals for Veterans Claims (Court) has found examinations inadequate where, as here, the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran should be provided a new VA examination to determine the nature and etiology of any current bilateral hearing loss disability. In addition, the Veteran has reported that he has experienced bilateral hearing loss disability since active service. As noted above, post-service medical records show that the Veteran has been diagnosed with bilateral hearing loss. In light of the Veteran's diagnosis of bilateral hearing loss disability, his reports that he has continued to experience bilateral hearing loss since active service, and post-service records showing a current diagnosis of bilateral hearing loss, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present bilateral hearing loss disability. McLendon v. Nicholson, 20 Vet.App. 79 (2006). Additionally, current treatment records should be obtained prior to a decision being rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and provide authorization for VA to obtain medical records from VA and non-VA health care providers for the treatment of bilateral hearing loss. 2. Then, obtain all pertinent VA medical records, not yet associated with the claims file, and non-VA medical records that are identified by the Veteran. Associate those records with the file. If any medical records are not available, the applicable provisions of 38 C.F.R. § 3.159 must be followed. 3. Thereafter, regardless of whether additional documents are obtained, schedule the Veteran for another VA examination for his hearing loss claim. The examiner should interpret the data on the undated in-service Maico Audiogram found in the Veteran's service medical records file. Taking the interpretation of the undated in-service Maico Audiogram data into consideration, the examiner should provide an opinion as to the current nature and severity of the Veteran's service-connected hearing loss. The examiner must review the claims file and must note that in the report. The examination must include testing of pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz and speech recognition scores using the Maryland CNC Test. All indicated studies should be conducted, and all findings reported in detail. The examiner should also take into account the Veteran's medical, occupational, and recreational history since service, and his claim of continuing symptoms since service. The VA examination must also include a statement as to the effect of the Veteran's hearing loss on his occupational functioning and daily activities. A complete rationale for all opinions expressed shall be provided. 4. The RO/AMC should review the claims folder to ensure that all of the remand directives have been accomplished, and should take any additional steps necessary to fully comply with the Board's remand. 5. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond to it. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. 2013). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs