Citation Nr: 1340588	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  12-18 592	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear hearing loss.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

U. Ifon, Associate Counsel



INTRODUCTION

The Veteran served on active military service from January 1982 to December 1984, with National Guard service from January 1985 to January 1991.  This appeal to the Board of Veterans' Appeals (Board) is from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

In this decision, the Board reopens the service connection claims for right ear hearing loss disability and tinnitus.  The reopened claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.

A review of the Veteran's Virtual VA file reveals pertinent records as noted in the facts below.


FINDINGS OF FACT

1.  In an unappealed December 2002 rating decision, the RO denied service connection for hearing loss and tinnitus.  

2.  The evidence received since the December 2002 rating decision relates to an unestablished fact necessary to substantiate the service connection claims for right ear hearing loss and tinnitus.


CONCLUSIONS OF LAW

1.  The December 2002 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160 (2013).

2.  New and material evidence has been received since the December 2002 rating decision to reopen a service connection claim for right ear hearing loss.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  New and material evidence has been received since the December 2002 rating decision to reopen a service connection claim for tinnitus.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  Given the Board's favorable disposition of the petition to reopen both claims, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished.

Petition to Reopen

Regardless of whether the RO granted or denied an application to reopen, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

The Board has jurisdiction to address a new and material issue and to reach the underlying claim de novo.  A final rating decision may be reopened when new and material evidence is presented or secured with respect to a disallowed claim.  38 U.S.C.A. § 5108.  New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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 either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Shade, 24 Vet. App. at 118.

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).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

At the time of the final December 2002 rating decision, there was no medical evidence of a current disability to substantiate a service connection claim for hearing loss or tinnitus.  Thus both claims were denied.

The evidence submitted since the final December 2002 decision includes an August 2010 VA audiology examination showing diagnoses of hearing loss and tinnitus.  These diagnoses constitute new and material evidence sufficient to reopen the service connection claims because they were not previously of record and they indicate the Veteran has a current disability.  They also raise a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for right ear hearing loss and tinnitus.  Accordingly, both claims are reopened.  


ORDER

New and material evidence has been received to reopen the service connection claim for right ear hearing loss disability; the petition to reopen is granted. 

New and material evidence has been received to reopen the service connection claim for tinnitus; the petition to reopen is granted.


REMAND

The Board finds that additional evidentiary development is necessary in order to address the merits of entitlement to service connection for right ear hearing loss and tinnitus.

First, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 C.F.R. § 3.159(c).  This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records.  38 C.F.R. § 3.159(c)(2).  Although the Veteran reported he received a hearing test during his National Guard service, those records are not of file and it does not appear that any attempts to obtain those records were made.  

Second, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2013).  Where hearing loss, as defined by 38 C.F.R. § 3.385, is not shown in service or at separation from service, service connection can still be established if medical evidence shows that it is actually due to incidents during service.  Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993).  Here, a VA examiner opined that right ear hearing loss was not due to service because there was normal hearing at separation.  Accordingly, remand is required to obtain an adequate etiological opinion.

As previously noted, the Veteran was afforded a VA audiology examination in August 2010.  The Board finds the examiner's opinion inadequate as it is not supported by a complete rationale.  In rendering his opinion, the examiner did not comment on all the audiometric data and treatment for right ear infection in the Veteran's service treatment records (STRs), the Veteran's lay statements, VA treatment notes regarding complaints of ear pain and ringing in the ears, or the high probability of an acoustic trauma in service.  

Inasmuch as the case is being remanded for an addendum, any outstanding VA treatment records from Nashville VA Medical Center (VAMC) should be associated with the claims file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's service treatment records from his National Guard periods of duty.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  

2. Obtain copies of all outstanding VA treatment records dated since March 2013 and associate them with the claims file.

3. Provide appropriate notice to the Veteran regarding unavailability of any records, to include private records from Dr. Dixon.

4.  After the aforementioned development has been completed and all records associated with the claims file, refer the Veteran's claims file to the August 2010 VA examiner who conducted the audiology examination or, if unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's right ear hearing loss disability and tinnitus.  

After reviewing the record again, the examiner is asked to clarify whether it is at least as likely as not (a 50 percent or greater probability) that the current right ear hearing loss and tinnitus are due to active military service.

A complete explanation should be provided.  The examiner should comment on the significance, if any, of:

(a)  All STRs, including audiometric findings from December 1981, October 1983, November 1984 and August 1989. 

(b)  A September 1982 right ear infection noted as otitis externa.

(c)  November 2004 and July 2009 VA treatment notes regarding complaints of ringing in the ears and right ear pain, respectively.  

(d)  The Veteran's lay statements, of exposure to grenades, M-16s, and other hazardous noise exposures during service.

(e)  The Veteran's military occupational specialty as a vehicle infantryman, which according to VA Fast Letter 10-35, has a high probability of hazardous noise exposure.

It should be indicated whether the type of hearing loss found is consistent with acoustic trauma, or is more likely related to infection, disease, advancing age or other non-service related cause.

If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative.

5.  Readjudicate the issues on appeal.  If the benefits sought remain denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response.

The Veteran 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. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs