Citation Nr: 1339468 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 12-07 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 through January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in addition to the paper claims file in this case, an electronic VA paperless claims file has also been associated with the Veteran's claim, and has been reviewed. A review of these electronic documents reveals that they include VA treatment records. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The issue of entitlement to service connection for bilateral hearing loss 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A November 2007 Board decision that denied service connection for bilateral hearing loss was not appealed nor was reconsideration requested. 2. Evidence received since that November 2007 decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The November 2007 Board decision is final. 38 U.S.C.A. §§ 7103, 7104(b) (West 2002 & Supp. 2013); 38 C.F.R. § 20.1100 (2013). 2. New and material evidence has been presented, and the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Given the Board's fully favorable disposition of the request to reopen the claim for service connection for bilateral hearing loss, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). II. New and Material Evidence The Veteran's claim seeking entitlement to service connection for bilateral hearing loss was previously denied in a November 2007 Board decision. Because the Veteran did not appeal the decision to the U.S. Court of Appeals for Veterans Claims (Court) or request reconsideration, the decision is final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2013). In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108 and 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. In making this determination, the Board must review all of the evidence submitted since the last final decision. 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). "New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. 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." Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. 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). The evidence considered at the time of the November 2007 Board decision included the Veteran's service records and a 2005 VA audiological examination. The basis of the final denial was that there was no evidence of a causal link between the Veteran's in-service exposure to hazardous noise and his currently diagnosed bilateral hearing loss. Evidence added to the record since the November 2007 Board decision consists of VA treatment records, an additional VA examination report, and a private medical opinion. This evidence is "new," as it was not previously submitted to agency decision makers. Additionally, the 2010 private medical opinion is material, as it relates to an unestablished fact necessary to substantiate the claim-the causal link between exposure to hazardous noise in service and the Veteran's current disability. Accordingly, new and material evidence has been received and the claim for service connection for bilateral hearing loss is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. REMAND Although the Board reopened the claim for service connection for bilateral hearing loss, that does not end the inquiry. Rather, consideration of the claim on the merits is required. Upon review of the record, the Board finds that an additional VA opinion is necessary. The Veteran was first afforded a VA examination for this claim in January 2005. At that time, the examiner provided a negative nexus opinion, citing normal readings on the Veteran's separation examination, but indicating that the reason for the Veteran's current hearing loss was not clear. In August 2010, the Veteran submitted a letter from a private audiologist who had taken a detailed history from the Veteran and reviewed his service treatment records. The audiologist stated that the Veteran's hearing loss was "more likely than not" related to his exposure to noise in service. She opined that although the Veteran's audiograms during service were within normal limits, "it is documented in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram." In January 2012, the Veteran was afforded another VA examination. The examiner diagnosed mild to moderately severe sensorineural hearing loss in both ears. Later that month, after the examiner was able to review the claims file, he issued an addendum that included an etiological opinion. The examiner opined that the Veteran's hearing loss was "not as likely as not" related to his military service. The examiner noted that the Veteran's separation examination indicated hearing that was within normal limits and there was no significant threshold shift during service. However, hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Additionally, the VA examiner did not address the opinion provided by the private audiologist in 2010, or explain why normal findings at separation from service indicate current hearing loss is not related to service. As a result, the Board finds that an additional VA opinion is necessary. Ongoing medical records should also be requested on remand. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the St. Louis, Missouri VAMC dated from December 2012 to the present that are relevant to the Veteran's hearing disability. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above has been completed to the extent possible, return the claims file to the January 2012 VA audiological examiner, if available. The January 2012 examination report, the claims file, and relevant electronic records should be reviewed. Thereafter, the examiner should provide an addendum opinion explaining why normal audiological findings in service are/are not significant in determining whether current hearing loss is related to noise exposure during service. In other words, why is the current hearing loss not merely a delayed reaction to the noise exposure in service? The examiner should also address the August 2010 opinion provided by the private audiologist. If, following additional review, the examiner now believes the hearing loss is related to service, the examiner should so state and explain why. If the original examiner is not available, the claims file should be forwarded to an examiner of similar or greater qualifications to provide the requested opinion. If a new examination is deemed necessary to respond to the questions posed, one should be scheduled. 3. After completing the requested actions, and any additional action deemed warranted, the RO/AMC should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs