Citation Nr: 1632960	
Decision Date: 08/19/16    Archive Date: 08/26/16

DOCKET NO.  12-36 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

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

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with alcohol abuse prior to March 9, 2016.

5.  Entitlement to a disability rating in excess of 70 percent for PTSD with alcohol abuse beginning March 9, 2016.



REPRESENTATION

Veteran represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

Jessica O'Connell, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1965 to September 1967.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA.

The issues of entitlement to increased ratings for PTSD with alcohol abuse, entitlement to service connection for tinnitus, and entitlement to service connection for a bilateral hearing loss disability are addressed in the REMAND that follows the ORDER of this decision.


FINDINGS OF FACT

1.  A June 2008 rating decision denied the Veteran's claim for entitlement to service connection for bilateral hearing loss; the Veteran did not file a timely notice of disagreement with respect to that decision or submit any pertinent evidence within the appeal period.

2.  Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss.


CONCLUSIONS OF LAW

1.  The June 2008 rating decision, which denied the claim of entitlement to service connection for a bilateral hearing loss disability, is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016).

2.  New and material evidence has been received since the June 2008 rating decision to reopen the claim of entitlement to service connection for a bilateral hearing loss disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Criteria for Claims to Reopen

Generally, a claim that has been denied in a final RO decision or final Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  However, 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.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a).  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.  Id.  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.  Id.

The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 118 (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).

Factual Background and Analysis

The Veteran's claim for service connection for a bilateral hearing loss disability was denied on the merits in an June 2008 rating decision because there was no competent evidence of record that his current bilateral hearing loss disability was related to his active duty service.  The Veteran did not file a timely notice of disagreement with respect to that decision, nor was any new and material evidence received within the appeal period, and therefore, the June 2008 decision became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103.

At the time of the June 2008 decision, the relevant evidence of record included the Veteran's service treatment records and a May 2008 VA audiological examination.

Evidence added to the record since the June 2008 rating decision includes, in pertinent part, the Veteran's statement, as documented in an August 2010 VA examination in connection with his claim for service connection for tinnitus, that he did not use hearing protection during service.

The Board finds this evidence constitutes new evidence.  It is not cumulative or redundant of the evidence of record at the time of the June 2008 final denial of the claim sought to be reopened and has not previously been before VA agency decision makers.

The Board also finds this new evidence is material.  This evidence relates to an unestablished fact necessary to substantiate the claim by supporting a nexus between the Veteran's current bilateral hearing loss disability and his active duty service.  Therefore, the newly associated evidence of record raises a reasonable possibility of substantiating the Veteran's claim and the claim is reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for a bilateral hearing loss disability is reopened, and to this extent only, the appeal is granted.


REMAND

Prior to adjudicating the Veteran's claims for increased ratings for PTSD with alcohol abuse, entitlement to service connection for tinnitus, and entitlement to service connection for a bilateral hearing loss disability, a remand is required.

In the Veteran's December 2012 Substantive Appeal, he requested a videoconference hearing before the Board, which was scheduled for July 2016.  In June 2016, the RO increased the Veteran's disability rating for PTSD with alcohol abuse from 30 percent to 70 percent disabling, effective March 9, 2016, the date of a VA examination, and continued the 30 percent rating prior to March 9, 2016.  The June 2016 rating decision did not address the Veteran's other claims on appeal.

In a June 2016 statement in response to the RO's decision to increase his disability rating for PTSD with alcohol abuse to 70 percent beginning March 9, 2016, the Veteran indicated that he was "satisfied with the decision" and that "[his] appeal may be closed."  Based on that statement, as documented in the VA Control and Locator System (VACOLS), the RO cancelled the Veteran's videoconference hearing scheduled for July 2016.  Thereafter, in a July 2016 statement, the Veteran requested an earlier effective date for the assignment of the 70 percent rating for PTSD and requested that VA review his mental health records from the Corpus Christi VA Outpatient Center (OPC) from January 1, 2010, to the present to verify that his disability was worse than rated throughout the period of the claim.  In this regard, the Board notes that the Veteran's original claim for an increased rating for PTSD with alcohol abuse has remained pending because the assigned staged 30 and 70 percent disability ratings are still less than the maximum benefit available.  See AB v. Brown, 6 Vet. App. 35, 39 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).  

Based on the foregoing, the Board finds that a remand is required to reschedule the Veteran for a videoconference hearing before the Board.

Accordingly, the case is REMANDED to the RO for the following action:

The RO should schedule the Veteran for a videoconference hearing in accordance with the docket number of his appeal and notify him and his representative of the date, time, and location of this hearing.  A copy of this notification letter must be associated with the Veteran's electronic claims file.  If the Veteran fails to report for his hearing or if he changes his mind and elects not to have one, this must be documented in his electronic claims file.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs