Citation Nr: 1337273 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-02 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia. THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for hearing loss. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Navy from November 1961 to March 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction lies with the Atlanta, Georgia RO. The reopened claim of service connection for hearing loss and the claim for service connection for tinnitus are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim of service connection for hearing loss was denied in an August 1989 rating decision. The Veteran did not enter a timely appeal. 2. Evidence received since the August 1989 rating decision is neither cumulative nor repetitive of facts previously considered and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The August 1989 rating decision that denied the Veteran's claim for entitlement to service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Specific to requests to reopen, the claimant must be notified of the criteria required to reopen the claim and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice letter provided to the Veteran in May 2010 addressed all notice elements required by Kent. Additionally, in this decision, the Board reopens the claim for service connection for hearing loss. In light of the favorable disposition, the Board finds that a full discussion of VCAA is not required at this time. New and Material Evidence An August 1989 rating decision denied the Veteran's claim for service connection for hearing loss. The Veteran did not appeal the rating decision and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 20.1105; see Glynn v. Brown, 6 Vet. App. 523, 527 (1994). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the August 1989 rating decision, the Veteran underwent a VA (contract) audiology examination and received diagnoses of bilateral hearing loss and bilateral tinnitus. The Veteran also submitted several lay statements in support of his claim. Specifically, a June 2010 audiology examination showed the Veteran's left ear auditory thresholds to be 40 decibels at 500 and 1000 hertz, 55 decibels at 2000 hertz, 65 decibels at 3000 hertz, and 70 decibels at 4000 hertz. The auditory thresholds of his right ear were shown to be 40 decibels at 1000 hertz, 50 decibels at 2000 hertz, 60 decibels at 3000 hertz, and 65 decibels at 4000 hertz. A hearing loss disability for the purpose of applying the laws administered by the VA is defined in the provisions of 38 C.F.R. § 3.385. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. With regard to the Veteran's lay statements, they provided detailed descriptions of his in-service duty assignments and noise exposure, as well as his post-service employment history and work environments. See, e.g., June 2010 statement; October 2010 notice of disagreement. In-service acoustic trauma has been conceded. See November 2011 statement of the case. As noted, new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening the claim. See Shade, supra; Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). The evidence received since the August 1989 rating decision is new, in that it was not previously of record. The newly received evidence is also material as it provides a current diagnosis of hearing loss and descriptions of the Veteran's in-service and post-service noise exposure. The Board concludes that the additional evidence described above is new and material with respect to the issue of service connection for hearing loss. This evidence was not previously of record at the time of the last prior denial, is not cumulative of prior records, and relates to an unestablished fact necessary to substantiate the claim. The new evidence, presumed credible, is therefore relevant and probative and raises a reasonable possibility of substantiating the Veteran's claim for service connection. Consequently, the Veteran's claim of entitlement to service connection for hearing loss is reopened. ORDER New and material evidence having been submitted, the claim of service connection for hearing loss is reopened. To this extent only, the claim is granted. REMAND Further development is required for a fair adjudication of the reopened claim for hearing loss, as well as the service connection claim for recurrent tinnitus. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As discussed above, the Veteran underwent a VA (contract) audiology examination in June 2010 in support of his claim for tinnitus. The Veteran received diagnoses of bilateral hearing loss and bilateral tinnitus. The audiologist concluded that the etiology of the tinnitus is at least as likely as not associated with the Veteran's hearing loss; however, because tinnitus was the focus of the examination, the examiner provided no opinion as to the etiology of his hearing loss. Accordingly, a new audiology examination and opinion is necessary to resolve the Veteran's claim. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the purposes of this opinion, the audiologist is instructed that in-service acoustic trauma has previously been conceded. Additionally, as the June 2010 audiologist opined that the Veteran's bilateral tinnitus is at least as likely as not associated with his hearing loss, the resolution of the reopened hearing loss claim may be outcome-determinative of the Veteran's tinnitus claim, such that they are potentially inextricably intertwined. Thus, appellate adjudication of the tinnitus claim will be held in abeyance pending the development ordered by the Board with regard to the Veteran's hearing loss claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination. The entire claims file, and a copy of this remand, must be provided to and reviewed by the audiologist in conjunction with the examination. All studies, tests, and evaluations should be performed as deemed necessary by the audiologist and the results of any testing must be included in the examination report. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. After reviewing the record and examining the Veteran, the audiologist should provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's current hearing loss and recurrent tinnitus had their clinical onset in service or are otherwise related to service, including the conceded in-service noise exposure. A full rationale must be provided for all opinions expressed. In formulating any opinion, the audiologist should take into account the Veteran's reports of his history, the conceded in-service noise exposure, and his current symptoms. The medical reasons for accepting or rejecting the Veteran's statements regarding symptoms, especially any continuity of symptoms since service, should be set forth in detail. If the audiologist finds that delayed onset hearing loss weighs against a finding that such hearing loss is connected to military service, the audiologist must provide specific reasons for any such finding. (If the Veteran fails to appear for examination, the audiologist should review the record and provide answers to the questions presented above, to the extent possible.) 2. After the requested examination has been completed, the opinion should be reviewed to ensure that it complies with the directives of this remand. If it is deficient in any manner, it should be returned to the audiologist for corrective action. 3. After completing the above, and any other development deemed necessary, readjudicate the issues of entitlement to service connection for hearing loss and recurrent tinnitus based on the entirety of the evidence. If a benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and afforded an appropriate time period for response before returning to the Board. No action is required of the Veteran until he is notified by the AOJ. 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. 2013). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs