Citation Nr: 1417907 Decision Date: 04/22/14 Archive Date: 05/02/14 DOCKET NO. 11-29 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for glaucoma. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for left ear hearing loss. 5. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for right ear hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The December 2009 rating decision, in part, reopened a claim of service connection for bilateral hearing loss. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. In May 2001, service connection for chronic low back pain was denied by the RO. This claim was received by VA on April 24, 2001, after the Veteran retired from active duty on April 1, 2001. Although the Veteran did not appeal, and the May 2001 decision became final, in July 2009, VA received service treatment records from March 1982 and May 1983 that were previously not of record. The service treatment records concern treatment for back spasms. As the May 2001 rating decision denied the Veteran's claim due to no evidence of an injury shown by in-service medical records, the Board finds that these newly received service treatment records are pertinent to the low back disability claim. Under 38 C.F.R. § 3.156(c), because service department records have been received after the 2001 denial, the claim must be reconsidered without regard to finality of the prior decision. The decision below addresses this issue de novo. Although the RO reopened the Veteran's claim of service connection for bilateral hearing loss, the Board must also address the question of reopening before proceeding to the merits. A threshold consideration in any case concerning a previously denied claim is whether new and material evidence has been received to reopen the claim. 38 U.S.C.A. § 5108 (West 2002); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The RO adjudicated the Veteran's hearing loss claim as bilateral hearing loss, However, the Board finds that the Veteran has different hearing levels in each ear. Therefore, the Board is bifurcating his claim into separate right ear and left ear claims. By the decision below, the Board is reopening the claim of service connection for left ear hearing loss because new and material evidence has been submitted. The issue of entitlement to service connection for glaucoma is addressed in the remand that follows the decision. The issue of entitlement to service connection for left leg radiculopathy, secondary to a low back disability, and tinnitus have been raised by the Veteran's testimony at his January 2014 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, a low back disability had its clinical onset during service. 2. In an unappealed May 2001 rating decision, the RO denied a claim of service connection for bilateral hearing loss. 3. The evidence submitted since the May 2001 RO decision is neither cumulative nor redundant of the record at the time of the prior final denial, and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for left ear hearing loss. 4. The evidence submitted since the May 2001 RO decision is cumulative and redundant of the record at the time of the prior final denial, and it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss. 5. The Veteran has left ear hearing loss that is attributable to active military service. CONCLUSIONS OF LAW 1. A low back disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The May 2001 decision denying reopening of a claim of service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.200, 20.201, 20.302 (2013). 3. The additional evidence received since the May 2001 decision is new and material, and the claim of service connection for left ear hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. The additional evidence received since the May 2001 decision is not new and material, and the claim of service connection for right ear hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 5. The Veteran has left ear hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has satisfied its duty to notify in the development of the claims on appeal. Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These requirements apply to all elements of a claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Proper notice must be provided prior to the initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In claims to reopen, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, an August 2009 letter notified the Veteran of the evidence and information necessary to reopen and substantiate his claims, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This was prior to the initial adjudication of the Veteran's claim in December 2009. This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As such, VA satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of his claims. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and to provide a medical examination or opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified, available VA and non-VA records have been obtained and considered. There is no indication or argument that any pertinent medical records remain outstanding. With regards to the Veteran's service treatment records (STRs), a September 2009 VA inquiry determined that no additional STRs could be found and associated with his claims file. The Veteran was notified of this in November 2009, and he supplied documents later that month that were determined to have already been of record. Second, the Veteran was afforded VA examinations in October 2009, and there is no argument or indication that the reports or opinions are inadequate for adjudication purposes. Thus, the medical evidence is sufficient. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159. II. Claim to reopen entitlement to service connection for bilateral hearing loss In an unappealed decision issued May 2001, the RO denied service connection for bilateral hearing loss. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim of service connection for bilateral hearing loss was denied in the May 2001 rating decision because the RO found that he did not have a disability that met the definition of impaired hearing for VA purposes. However, at his October 2009 VA audiology examination, the Veteran had a left ear speech recognition score of 88 percent. This is new evidence that is also material, inasmuch a score below 94 percent satisfies the requirement for impaired hearing. See 38 C.F.R. § 3.3.85. New and material evidence having been received, reopening of the claim for service connection for left hearing loss is granted. However, with regards to his right ear, the Veteran did not meet the requirements for impaired hearing for his right ear. All of the puretone thresholds in his right ear were measured at 5 decibels. His right ear speech recognition score was 96 percent. Accordingly, the Veteran does not have a disability that meets the definition of impaired hearing for his right ear. Id. Therefore, the Board finds that new and material evidence has not been received to reopen the claim for service connection for right ear hearing loss. III. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service--the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). A. Left ear hearing loss The Veteran asserts that he is entitled to service connection for hearing loss in his left ear. He states that he was exposed to loud noises while serving aboard ships in the Navy. Specifically, he states that his berthing compartment and rack aboard the U.S.S. Biddle were behind a 5 inch gun mount. Later, the Veteran states that he was exposed to loud noises aboard the U.S.S. John F. Kennedy, where he worked below the flight deck. As these assertions are consistent with acoustic trauma, in-service injury is established. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. As discussed above, the Veteran has a disability that meets the definition of impaired hearing. At his October 2009 VA audiology examination, his speech recognition score in his left ear was 88 percent. Therefore, the remaining question is the existence of a nexus between his in-service noise exposure and his current left ear hearing disability. Here, the Board finds that the evidence of record is in equipoise, warranting service connection. The VA examiner found that it was less likely as not that the Veteran's hearing disability due to his military noise exposure. She stated that, aside from his speech recognition score, his hearing was completely within normal limits. Hearing loss due to noise exposure typically manifests itself as high frequency sensorineural hearing loss, and noise exposure does not cause a reduction in word recognition scores without high frequency hearing loss. However, lay evidence suggests the existence of a nexus. The Veteran has consistently reported having a hearing disability. In his December 2000 separation medical history, the Veteran reported having hearing loss. He did not report any such hearing loss in his February 1980 entrance medical history. The Veteran also testified as such at his hearing before the Board. As a lay person, the Veteran is competent to testify as to a nexus inasmuch as he can identify the medical condition of hearing loss. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also finds the Veteran credible. Given the Veteran's lay statements and the VA audiology examination, when affording the Veteran the full benefit of the doubt, the evidence for and against the Veteran's claim is at least in equipoise. See 38 U.S.C.A. § 5107(b). He is entitled to service connection on a direct basis. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). B. Low back disability An October 2009 VA examination and private treatment indicate that the Veteran has a current low back disability. The VA examination diagnosed the Veteran with lumbar strain. A May 2010 radiology report found that the Veteran had disc bulges at L3-L4 and L4-L5. Service treatment records show that the Veteran received treatment for muscle spasms in March 1982 and May 1983. Further, the Veteran has provided lay testimony concerning in-service back injuries. He stated at his hearing before the Board that the 1982 injury arose from working on replenishment details that required navigating ladders. He also testified that he was in a low speed car accident in February 1994, and that he later again injured his back in 1994 or 1995 during firefighting training. The Veteran is competent to report his injury history. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge.). The Board also finds the Veteran credible, having his heard his testimony at his January 2014 hearing. The remaining question is the existence of a nexus between his in-service injuries and his current low back disability. Here, the Board finds that the evidence of record is in equipoise, warranting service connection. Medical evidence of record suggests that a nexus does not exist. At the Veteran's October 2009 VA examination, the examiner concluded that it is less likely as not that the Veteran's back condition is related to his service. He stated that the Veteran had acute episodes of back pain in March 1982 and February 1984. While the Veteran was treated for lumbar strain, the examiner noted that there was no follow up. According to the examiner, without any follow up and due to the fact that the February 1994 accident was low speed, it is unlikely that the Veteran suffered any permanent injury; acute strains typically resolve without long term sequelae. The examiner also noted that there is no evidence supporting the Veteran's assertion that he hurt his back during a firefighting exercise. However, lay evidence of record does indicate that a nexus exists. Specifically, the Veteran has consistently reported persistent and recurrent symptoms of low back pain dating back to mid-1990's, when the motor vehicle accident and firefighting injury occurred. In his December 2000 separation examination, the Veteran indicated that he had recurrent back pain. The physician elaborated in Box 25 that the Veteran reported lower back pain for "many years (5)." Later, a July 2001 radiology report noted that the Veteran reported chronic back pain over the past seven to eight years. At his January 2014 hearing before the Board, the Veteran again reported that his back pain began in service and has continued since. The Veteran is competent to report symptoms such as low back pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). The Board finds him credible. Given the Veteran's lay statements and the VA medical examination, when affording the Veteran the full benefit of the doubt, the evidence for and against the Veteran's claim is at least in equipoise. See 38 U.S.C.A. § 5107(b). He is entitled to service connection on a direct basis. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). ORDER New and material evidence having been submitted, the claim of service connection for bilateral hearing loss is reopened. To this extent, the claim is allowed. Entitlement to service connection for left ear hearing loss is granted. New and material evidence having not been submitted, the claim of service connection for right ear hearing loss is not reopened Entitlement to service connection for a low back disability is granted. REMAND The Board finds that additional development is required on the issue of the Veteran's entitlement to glaucoma. VA must provide a medical examination when there is evidence of a current disability, evidence that an injury occurred in service, an indication that the Veteran's disability may be associated with his service, and insufficient competent medical evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is evidence of a current glaucoma disability, inasmuch as the Veteran has provided records documenting as such. See, e.g., private medical record from March 2009. There is also an undated service treatment record noting that the Veteran was evaluated for suspect glaucoma, and an October 1994 record showing a complaint of difficulty with night vision. There is therefore evidence that an injury occurred in service and an indication that this disability may be associated with his service. There is also insufficient medical evidence to decide his claim, inasmuch as none of the records provided by the Veteran contain an opinion linking his current disability to his in-service injury. Accordingly, an examination is warranted to determine whether a nexus exists between his current glaucoma disability and his in-service vision difficulties. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examinations to determine the nature and etiology of his glaucoma. The examiner should review the entire claims file, including a copy of this remand. Such review should be noted in the examination report. All necessary tests and studies should be conducted. Based on review of the record and examination of the Veteran, the examiner should respond to the following: State whether it is at least as likely as not (50 percent probability or more) that the Veteran's glaucoma was incurred during his service. In responding to the above, the examiner should provide an explanation that takes into account all lay and medical evidence, including the Veteran's lay statements and the service treatment records concerning the Veteran's suspect glaucoma and night vision difficulties. The examiner should give medical reasons for accepting or rejecting the lay statements regarding the in-service injury and symptoms since service. 2. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the case is returned to the Board for further review. 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. 2012). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs