Citation Nr: 1625564 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 14-17 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1950 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 1973 rating decision, the RO denied the issue of service connection for hearing loss. The Veteran did not initiate an appeal to this decision. 2. Additional evidence received since the March 1973 rating decision on the issue of service connection for hearing loss is neither cumulative nor redundant, addresses the grounds of the prior final denial of service connection, and raises a reasonably possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1973 rating decision is final. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claim of whether new and material evidence has been received to reopen a claim of service connection for hearing loss has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of this issue, further explanation of how VA has fulfilled the duties to notify and assist with respect to this issue is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). New and Material Evidence Claims Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components: first, that the new evidence pertains to the reason(s) for the prior final denial; and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board considers whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. Evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Reopening of the Claim of Service Connection for Hearing Loss The Veteran seeks to reopen a claim of service connection for hearing loss. In a March 1972 rating decision, the RO denied service connection for hearing loss, indicating that the available records did not show a diagnosis of or treatment for hearing loss during service. Following the March 1972 rating decision, the Veteran submitted two lay statements in support of the appeal. The authors of both lay statements indicated that they noticed the Veteran's increasing hearing impairment following service. In a March 1973 rating decision, the RO confirmed the denial of service connection, finding no in-service documentation of complaints of or treatment for hearing loss. The Veteran did not initiate an appeal as to the March 1973 rating decision; therefore, the March 1973 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since the last final disallowance of the claim of service connection for hearing loss, evidence that has been associated with the claims file includes post-service private treatment records, records from the Social Security Administration, a VA examination report from June 2012, and lay statements from the Veteran, including his testimony at the May 2016 Board hearing. Collectively, the recently-submitted evidence demonstrates continued symptoms of hearing impairment, and the Veteran's continued contentions that his hearing impairment is due to exposure to the loud noises associated with gun fire experienced during his active service. In addition, the Veteran submitted an August 2012 medical opinion from a private audiologist, who opined that it is as likely as not that the Veteran's hearing loss is the result of the noise exposure that would be consistent with his military training and military occupational specialty. The recently-submitted evidence documenting continued symptoms of hearing impairment is new, in that it was not of record at the time of the prior final denial; however, evidence of current symptomatology was of record at the time of the prior final denial. Additional recently-submitted evidence, however, is neither cumulative nor redundant of evidence already of record at the time of the last final disallowance; specifically, the August 2012 private medical opinion that provides medical evidence in favor of the Veteran's claim The recently-submitted evidence is also material because it relates to unestablished facts that are necessary to substantiate the claim. The recently-submitted evidence, specifically the August 2012 private medical opinion, tends to suggest that the Veteran's hearing loss is related to his military service as a direct result of his military training and military occupational specialty. Regarding the recently-submitted evidence, 38 C.F.R. § 3.156(a) creates a low threshold that "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18. Given this standard, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the March 1973 decision is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of a claim of service connection for hearing loss. ORDER New and material evidence having been received, the appeal to reopen a claim of service connection for hearing loss is granted. REMAND Although the Veteran has submitted a favorable medical opinion from a private audiologist, the opinion is not sufficient by itself to establish service connection, as it is not supported by sufficient rationale. Thus, further development is warranted. During the May 2016 Board hearing, the Veteran testified that he worked as a factory worker at the Ford Motor Company's stamping plant. The Veteran indicated that he underwent periodic audiological testing during his employment. Records from the Veteran's employer are not of record. Accordingly, VA has a duty to make reasonable attempts to obtain this potentially relevant evidence. As it does not appear that these relevant records have been requested, a remand is required. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request the appropriate release(s) to obtain all records pertaining to audiological testing performed by the Ford Motor Company at their stamping plant in Buffalo, New York, and any other additional pertinent private medical records not already identified, relating to post-service treatment for hearing loss and tinnitus. Associate all records obtained with the claims file. If any records identified by the Veteran are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies in his possession. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. After completion of the above and any other appropriate development deemed necessary, readjudicate the issues on appeal on the basis of the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran 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 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 2014). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs