Citation Nr: 1637470 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 15-28 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Krunic, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1947 to August 1949 and in the United States Army from November 1949 to December 1955 and from March 1956 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA claims file contains documents that are either duplicative of the evidence in the VBMS claims file or not relevant to the issue on appeal. 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 reopened claim for service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2011 rating decision, the AOJ denied service connection for bilateral hearing loss. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the August 2011 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. The August 2011 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2015). 2. The evidence received since the August 2011 rating decision is new and material as to the claim for service connection for bilateral hearing loss, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). The Board has a jurisdictional responsibility to determine whether a claim should or should not be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In other words, new and material evidence is jurisdictional and without it the Board has no jurisdiction to adjudicate the merits de novo. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board must conduct a new and material evidence analysis regardless of whether or not the AOJ has previously found in favor of reopening a claim. In an August 2011 rating decision, the AOJ denied the Veteran's claim for service connection for bilateral hearing loss, finding that there was no nexus between the current bilateral hearing loss disorder and his military service. In addition, the AOJ found that there was no evidence that the Veteran's hearing loss manifested to a compensable degree within one year of separation from active service. The Veteran was notified of this decision and of his appellate rights, but he did not appeal it or submit new and material evidence within the one-year appeal period. Therefore, the August 2011 decision is final. See 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the August 2011 rating decision, the evidence of record included the Veteran's service treatment records, VA treatment records, a VA examination, and statements from the Veteran and his representative. The evidence received since the August 2011 rating decision includes the Veteran's lay statement that the onset of his bilateral hearing loss stemmed from a combination of his military occupational specialty (MOS) duties and his combat activity. See July 2015 VA Form 9. The record also contains VA treatment records showing a continued diagnosis of bilateral hearing loss and prescription for hearing aids. This additional evidence relates to an unestablished fact necessary to substantiate the claim (a possible link between a current disorder and military service), and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Thus, the Board finds that this evidence is both new and material, and the claim for service connection for bilateral hearing loss is reopened. ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. REMAND Unfortunately, a remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran has claimed that his current bilateral hearing loss is a result of in-service noise exposure. He was afforded a VA audiology examination in May 2011. In the examination report, the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. However, the Board finds that the VA examination report is inadequate for a number of reasons. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the May 2011 examiner conceded military noise exposure from weapons, motor vehicles, helicopters and explosives, she relied on normal hearing during service and at separation in concluding that the Veteran's hearing loss is not related to or caused by in-service noise exposure. In so finding, the examiner stated that the medical literature does not support delayed-onset hearing loss. However, the examiner failed to address the Veteran's statement that he has had over 30 years of military noise exposure and ongoing decreased hearing over the past 40 years. See October 2008 VA treatment record. Moreover, the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Finally, the Board finds that the examiner failed to discuss the significance, if any, of any threshold shifts between the Veteran's enlistment and separation. See e.g. December 1962 reenlistment examination. For the foregoing reasons, the Board finds that a remand is necessary for another VA examination and medical opinion to address the nature and etiology of the Veteran's bilateral hearing loss. See Barr, supra. Accordingly, the case is REMANDED for the following action: (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. The Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay assertions, and any medical studies submitted by the Veteran and his representative. The Veteran has contended that he experienced noise exposure in service from artillery noise. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should also be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should opine as to whether it is at least as likely as not (a 50% or greater probability) that any current hearing loss had its onset in service, was caused by military service, or is related to military service, to include whether any injury due to loud noise exposure experienced therein contributed to his current bilateral hearing loss. The examiner should specifically address whether there was any threshold shift or notch at higher frequencies during service or shortly thereafter that may be indicative of acoustic trauma. The examiner should also comment on the likelihood that loud noises experienced resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If the examiner finds auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. In rendering the opinion, the examiner should consider the October 2008 VA treatment record wherein the Veteran states that he has 30 years of military noise exposure and has experienced ongoing bilateral hearing loss for the past 40 years. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it). A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ 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 record 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 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs