Citation Nr: 1537418 Decision Date: 09/01/15 Archive Date: 09/10/15 DOCKET NO. 11-30 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a bilateral vision disorder. 2. Whether new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss disability. 3. Whether new and material evidence has been received to reopen the claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1948 to November 1951. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April and July 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in November 2011. The Board remanded the case to the RO to schedule a videoconference hearing in August 2012, but in January 2013, he withdrew the hearing request. He died later that month. His appeals were dismissed by the Board in March 2013, and now his widow has been substituted in as the claimant. The issues of service connection for bilateral hearing loss disability and tinnitus, on their merits, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a bilateral vision disorder was denied by the Board in October 2009. 2. The evidence received since the Board's October 2009 decision raises a reasonable possibility of substantiating the claim for service connection for a bilateral vision disorder. 3. The evidence now shows that the Veteran's optic neuritis at least as likely as not had its onset in service. 4. Service connection for bilateral hearing loss disability and tinnitus was denied by the Board in September 2008. 5. The evidence received since the Board's September 2008 decision raises a reasonable possibility of substantiating the claims for service connection for bilateral hearing loss disability and tinnitus. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for service connection for a bilateral vision disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 2. The criteria for service connection for bilateral optic neuritis are met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.303 (2014). 3. The Board's September 2008 denying service connection for bilateral hearing loss disability and tinnitus is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2014). 4. New and material evidence has been received for each claim; the claims for service connection for bilateral hearing loss disability and tinnitus are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim for service connection for bilateral optic neuritis is being granted. Accordingly, any notice or assistance deficiencies for it are harmless. The Board will not make a determination at this time as to whether notice and assistance requirements have been met for bilateral hearing loss disability or tinnitus, as it is reopening the claims and remanding them to the RO for further action including merits adjudication. Prior Board decisions are final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C.A. § 5108. Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Organic disease of the nervous system is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). For VA compensation and pension purposes, 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 3 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 (2014). Bilateral vision disorder The Board denied service connection for a bilateral vision disorder in October 2009. That Board decision is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. At the time, the Board noted that it had denied the claim in November 2005, and that at that time, service treatment records were negative for an eye disorder and the Veteran's eyes were normal on service discharge examination in November 1951. The Board also noted that medical opinions rendered by two private physicians had previously been found in November 2005 to be speculative and inconclusive and unable to support service connection; and that the Veteran himself did not have the requisite competence to render medical opinions. The Board found in October 2009 that treatment records submitted since the November 2005 decision showing eye disorders were silent as to nexus to service, and that the Veteran's own opinion which he submitted on whether an eye disorder was related to service lacked competence, and that as such, the evidence submitted was not new and material evidence. Since that decision, a November 2009 private medical record and April 2010 testimony from the Veteran have been received. Those pieces of evidence tend to indicate that the Veteran's optic neuritis had its onset in service. Namely, the November 2009 letter from the Veteran's private ophthalmologist states that the optic neuritis which the Veteran was treated for by VA starting on January 2, 1952 generally has a 6 to 8 week course, and so it is possible that the visual loss began before he left service. Additionally, the Veteran indicated during his December 2010 hearing that he started seeing halos while driving at night 3 weeks after service. He had not driven in service. It took him a couple of weeks to see a private doctor when his mother called for an appointment with him. That doctor saw the Veteran and advised him to go to VA since he did not have any health insurance. VA told him they could give him an appointment after the holidays, and he went in on January 2, 1952. These pieces of evidence are considered to be new and material evidence for the bilateral vision disorder claim as they are the type of evidence which was necessary but lacking at the time of the prior Board decision. Accordingly, the claim is reopened. The claim will now be discussed on its merits. It is allowable at this point. Service treatment records are silent for reference to eye problems and the Veteran's eyes were normal on service discharge examination in November 1951. Based on the recent credible testimony from the Veteran, it now appears that he started noticing optic neuritis symptoms within a few weeks following his November 9, 1951 service discharge. Additionally, his private ophthalmologist indicated in November 2009 that it was possible that his optic neuritis began before he left service, as the general time course for it is generally 6 to 8 weeks. His ophthalmologist also indicated that his examination of the Veteran in November 2009 showed bilateral optic neuropathy, which he felt could well represent the residue of previous episodes of idiopathic/para-infection optic neuritis/neuroretinis bilaterally. After considering all of the evidence, the Board finds that reasonable doubt is present as to whether the Veteran's optic neuritis had its onset in service. Accordingly, that doubt is resolved in the appellant's favor. The Board finds that the Veteran's optic neuritis at least as likely as not had its onset in service, and so service connection is warranted for it. Hearing loss and tinnitus The Board denied service connection for bilateral hearing loss and tinnitus in September 2008. That Board decision is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The basis of the decision was that the Veteran's service treatment records were negative for hearing loss and tinnitus, his hearing was 15/15 bilaterally on service separation examination in November 1951, and neither hearing loss nor tinnitus was objectively demonstrated post-service. Since that decision, a July 2009 private medical record has been submitted showing that the Veteran had bilateral hearing loss disability which appears to have met the criteria for hearing loss disability per 38 C.F.R. § 3.385 at that time, as well as left ear tinnitus. This report is considered to be new and material evidence for both the hearing loss and the tinnitus claim as it is the type of evidence which was necessary but lacking at the time of the prior Board decision. Accordingly, the claims are reopened. Further action on these claims is being ordered in the remand section of this decision. ORDER As new and material evidence has been received, the claim for service connection for bilateral vision loss disorder is reopened. Service connection for bilateral optic neuritis is granted based on new and material evidence. As new and material evidence has been received, the claims for service connection for bilateral hearing loss disability and tinnitus are reopened. REMAND The Board has reopened the claims for service connection for bilateral hearing loss disability and tinnitus on the basis of new and material evidence. The RO has not considered these claims on the merits, and it must do so prior to any Board decision, to ensure that the appellant is afforded due process of law. Accordingly, these claims are remanded for that purpose. See Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, the Board finds that additional development of the claims is necessary in order to assist the appellant with them. The Board notes that prior to his death, the Veteran had argued or contended that he had hearing loss and tinnitus which were related to service. He testified in December 2010 that during his Korean War service, he traveled in 2 1/2 ton trucks and jeeps, and that they were loud, especially in convoys. Post-service, he worked for automobile plants on the assembly line, and then became a painter for 32 years. After that, he was a car salesman. He was not exposed to loud noises in those occupations. He intimated that he had been exposed to noise in service on the rifle range also, without ear protection. Currently, the first medical record of record showing hearing loss disability and tinnitus is dated in July 2009, which was many years after service. As alluded to in part in the Board's September 2008 decision, the Veteran had claimed service connection for eye problems in 1952, without claiming service connection for hearing loss or tinnitus. His hearing was 15/15 for spoken and whispered voice on service discharge examination in November 1951, and numerous post-service VA and private hospital, examination, and medical history reports from 1952 to 2006 are negative for findings or diagnosis of any hearing loss or tinnitus. He filed another claim for eye problems in August 2001, without claiming service connection for hearing loss or tinnitus. A report of VA hospitalization from January to February 1952 indicates that ear, nose, and throat medical consultation was negative, and February 2000 and April 2001 private medical records indicate that the Veteran specifically denied a history of decreased hearing. The Board finds that VA medical opinions as indicated below are necessary for the Veteran's hearing loss and tinnitus claims in order to assist the appellant with them pursuant to 38 C.F.R. § 3.159. Beforehand, any additional relevant medical records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional relevant medical records showing, for instance, treatment or notation of hearing loss or tinnitus between service discharge and July 2009, when they are currently first noted in medical records. 2. After obtaining the above evidence, to the extent available, the RO should obtain a medical opinion to determine the etiology of the Veteran's current bilateral hearing loss disability and tinnitus. A copy of this remand as well as the claims folder should be provided to the examiner for review in conjunction with the examination. After reviewing the file and the remand, the examiner must render an opinion as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss disability and/or tinnitus was manifest in or is otherwise causally related to service, to include the truck and jeep noise exposure in service described above, which should be conceded. Information contained in the medical records contained in the claims folder should be considered in making these determinations. The examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. It should be noted that a nonresponse will not be accepted as an adequate response to the Board's inquiry. If the examiner concludes that the opinions requested cannot be answered without resort to mere speculation, a detailed explanation for why this is the case should be provided. 3. Thereafter, readjudicate the pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael Martin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs