Citation Nr: 1507246 Decision Date: 02/19/15 Archive Date: 02/26/15 DOCKET NO. 13-02 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from November 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a VA Form 21-4138, Statement in Support of Claim, submitted in August 2006, the Veteran submitted a claim for compensation for loss of a creative organ, claimed as due to service-connected diabetes mellitus type II. That claim has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal of the reopened claims of entitlement to service connection for hearing loss and for tinnitus, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In a July 2006 rating decision, the RO denied claims of service connection for hearing loss and tinnitus. The Veteran did not perfect an appeal of the decision. 2. Evidence received since the RO's July 2006 decision relates to an unestablished fact necessary to substantiate the claims of service connection for hearing loss and tinnitus, and it raises a reasonable possibility of substantiating the underlying claims. CONCLUSIONS OF LAW 1. The July 2006 RO decision, which denied the Veteran's claims of service connection for hearing loss and tinnitus, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence sufficient to reopen the previously denied claims of service connection for hearing loss and tinnitus, has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Petition to Reopen Claims The Veteran originally filed claims of service connection for hearing loss and tinnitus in March 2005. In a July 2006 rating decision, the RO denied the claims. The Veteran was notified of the July 2006 rating decision and his appellate rights by a letter dated later that month. The Veteran initiated an appeal by submitting a notice of disagreement in August 2006. However, after the RO issued a statement of the case on the matter in February 2007, the Veteran did not perfect an appeal from the July 2006 RO rating decision. Therefore that rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). The Veteran filed a claim to reopen the previously denied claims in July 2010. In a May 2011 rating decision, the RO declined to reopen the two claims on the basis that new and material evidence had not been received to reopen. The Veteran's appeal of this decision forms the basis of the present appeal. The statement of the case, dated in December 2012, and a supplemental statement of the case dated in June 2014, confirmed and continued the denials, declining to reopen both claims. The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issues going to the merits. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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, which in this case relates to the criteria necessary to establish service connection. 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by case law, new evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The language of 38 C.F.R. § 3.156(a) creates a low threshold to reopen, and 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." See Shade v. Shinseki, 24 Vet. App. 110, 120-21 (2010). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial pertinent to the claims now under consideration is the July 2006 RO decision. For purposes of the new and material analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence of record at the time of the July 2006 decision included service personnel and treatment records and private treatment records. New evidence added to the record since the July 2006 rating decision includes: VA and private treatment records dated between 1992 and 2008; and the report of a September 2009 VA examination of the knees, hips, and elbows. In the July 2006 decision ,the RO denied the claims based on a determination that the evidence did not show treatment for or the presence of hearing loss or tinnitus, currently or in service. 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. See 38 C.F.R. § 3.385 (2014). The clinical records on file at the time of the July 2006 rating decision include reports of examinations in service containing findings from audiological evaluation. None of these findings in service is productive of hearing loss under VA criteria. Id. Nor do any of the service treatment records show any reference to complaints of tinnitus. Of the evidence available at the time of the July 2006 decision, none of the post-service medical evidence addresses hearing loss or tinnitus. The new evidence added to the record since the July 2006 decision includes both VA and private treatment records; and reports of a February 2005 private audiology examination, and a February 2011 VA audiology examination. The new evidence includes material evidence not on file at the time of the last final decision of the RO in July 2006, as the new evidence relates to an unestablished fact necessary to substantiate both of the respective claims. This includes medical evidence of tinnitus. A February 2005 private audiology report shows that in a section that included reference to objective findings, the examiner stated that most of the Veteran's problem was tinnitus. At the February 2011 VA audiology examination the Veteran reported that he had a constant, bilateral tinnitus, long-standing, high-pitched and variable in loudness. The VA examination report diagnosis included tinnitus. This evidence was not present at the time of the July 2006 rating decision. The new evidence submitted since the July 2006 decision also contains material evidence regarding the hearing loss claim as it that relates to an unestablished fact necessary to substantiate the claim. The February 2011 VA audiology examination report includes findings meeting criteria for left ear hearing loss for VA purposes, as the audiology examination resulted in an auditory threshold of 40 decibels at 4000 Hertz in the left ear. With respect to the right ear aspect of the claim, the evidence received since the July 2006 rating decision, in combination with that present at the time of that decision, relates to an unestablished fact necessary to substantiate the claim. Review of all of the audiology evaluation findings over time since during service shows that the Veteran's right ear hearing acuity in general decreased during service and continued to do so after service between the time of the two audiology evaluations in February 2005 and February 2011; paralleling the medical history of the left ear hearing loss. Although the right ear audiology findings do not meet criteria to be considered a hearing loss disability under 38 C.F.R. § 3.385, there is new and material evidence to reopen that aspect of the claim. In sum, with respect to both the hearing loss and tinnitus claims, the Board finds that the evidence submitted since the July 2006 decision is new because it was not previously before VA decision makers. The evidence is also material because it relates to unestablished facts necessary to substantiate the claims, and thereby raises a reasonable possibility of substantiating the claims, particularly when considering the low threshold for reopening a claim set forth in Shade. Accordingly, the claims of entitlement to service connection for hearing loss and tinnitus are reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claims are further addressed in the remand section. ORDER As new and material evidence has been presented, the claim of entitlement to service connection for hearing loss is reopened, and to this extent only the appeal is granted. As new and material evidence has been presented, the claim of entitlement to service connection for tinnitus is reopened, and to this extent only the appeal is granted. REMAND A remand of the claims of service connection for hearing loss and tinnitus is necessary for the following reasons. Medical records on file show that audiology examinations were conducted during the appeal. The reports of private audiology examination in February 2005 and VA audiology examination in February 2011 show that the auditory thresholds measured at the indicated frequencies or the speech recognition scores met the criteria to be considered a disability in the left ear in 2011, but did not meet the criteria in the right ear at either examination. See 38 C.F.R. § 3.385. The VA examiner in February 2011 opined that any present hearing loss was more likely than not due to something other than service noise exposure, because the Veteran's hearing was unchanged and normal at discharge. As rationale, the examiner stated that hearing loss due to acoustic trauma or high noise exposure generally occurs at the time of the incident, and with the discharge examination being normal, any loss noted presently would more likely than not was due to something other than service noise exposure. The examiner opined that the Veteran's tinnitus is more likely than not related to the hearing loss. The examiner did not, however, consider the likelihood of any other service-connected etiology for the hearing loss or for tinnitus, albeit he linked the etiology of the tinnitus to the hearing loss. Given that service connection is in effect for type II diabetes mellitus, an opinion should be obtained as to the likelihood that any hearing loss or tinnitus was caused or aggravated by type II diabetes mellitus, to include diabetic auditory neuropathy or other neuronal degeneration of the auditory system; or by some other diabetic pathogenesis causing an inner ear cochlear or other apparatus damage resulting in hearing loss, such as any present diabetic hypertension that may have developed. Further, given the VA examiner's opinion linking the etiology of the Veteran's tinnitus to his hearing loss, resolution of the hearing loss etiology is inextricably linked to the resolution of the tinnitus claim. Additionally, given evidence of progressively increased levels of auditory thresholds over time in both ears since during service, audiology findings are needed to determine the current level of hearing loss in both ears and whether right ear hearing loss is present for VA purposes. Finally, any outstanding relevant treatment records should be obtained on remand. Accordingly, these issues are REMANDED for the following actions: 1. Obtain pertinent outstanding VA and private medical records of treatment of the Veteran for the claimed conditions. 2. After completion of the above, schedule the Veteran for a VA audiology examination to determine the nature extent, onset and likely etiology of any hearing loss and tinnitus present. The claims file and copy of this remand must be made available to and reviewed by the examiner. The examiner is to elicit from the Veteran a history of noise exposure during and since service, and of pertinent auditory symptoms since service, and since signs or symptoms of his type II diabetes mellitus developed. For left ear hearing loss, and any present right ear hearing loss (defined as 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), and tinnitus, the examiner must provide a medical opinion as to whether it is at least as likely as not that such hearing loss or tinnitus present: (i) had its onset in service or is related to service, to include as due to exposure to loud noise associated with incidents in service including exposure to weapons fire, mortar fire, tank engine noise, or associated with activities achieving Parachute Badge or Basic Airborne education or subsequent related activity; or (ii) is proximately due to or the result of a service-connected disability, to include type II diabetes mellitus, to include diabetic auditory neuropathy or other neuronal degeneration of the auditory system; or All opinions must be supported by a thorough rationale. 3. Following any additional development deemed appropriate, readjudicate the Veteran's claims on the merits. If any benefit sought is not granted, an appropriate supplemental statement of the case must be issued. The Veteran and the representative must be afforded an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs