Citation Nr: 1756524	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  16-42 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

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

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Williams, Counsel 




INTRODUCTION

The Veteran had active service from July 1958 to April 1961. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  Jurisdiction of this appeal belongs to the RO in Detroit, Michigan.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

In the decision below, the Board reopens the claim for entitlement to service connection for bilateral hearing loss.  The claim on the merits 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 August 2005, the RO denied service connection for hearing loss on the basis that the medical evidence of record failed to show that hearing loss had been clinically diagnosed.  The Veteran did not appeal the decision, and therefore the August 2005 rating decision became final.  

2.  Evidence received since the August 2005 rating decision includes clinical records indicating that the Veteran's has bilateral hearing loss.


CONCLUSION OF LAW

New and material evidence has been received to reopen the Veteran's claim of service connection for bilateral hearing loss.  38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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, 3.326(a) (2015).  In the present case, the Board is granting the claim to reopen.  Therefore, no further discussion regarding VCAA notice or assistance duties is required.

Application to Reopen

Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C.A § 5108; 38 C.F.R. § 3.156.  "New" evidence means evidence "not previously submitted to agency decisionmakers."  38 C.F.R. § 3.156(a).  "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."

The United States Court of Appeals for Veterans Claims (Court) has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).

Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim."  Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).  If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final."  King v. Shinseki, 23 Vet. App. 464, 466-67 (2010).  

When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final.  Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims").  In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b).  Id.

In August 2005, the RO originally denied the claim of service connection for hearing loss.  The Veteran did not appeal the decision.  At that time, the evidence failed to show that the Veteran was diagnosed with hearing loss.  

The Veteran filed a claim to reopen his claim for service connection for hearing loss in November 2015.  In an April 2016 rating decision, the RO continued the previous denial because while the evidence showed a current diagnosis of hearing loss for VA purposes, there was no medical link between the Veteran's hearing loss and service.  

The Veteran has submitted several items of evidence since the previous final August 2005 adverse decision, including an April 2016 VA examination report and private clinical records dated in December 2015.  

Reviewing the evidence in its entirety, there is a sufficient evidentiary basis to reopen the Veteran's claim.  The December 2015 private medical record reflects an opinion that the Veteran's current hearing loss is at least as likely as not related to his active duty service.  The December 2015 private medical record and April 2016 VA examination report both reflect diagnosis of sensorineural hearing loss which is considered hearing loss for VA purposes.  Thus, evidence submitted since the RO's August 2005 decision, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim.  Therefore, new and material evidence has been received since the RO's August 2005 decision, and reopening the claim of service connection for hearing loss is warranted.  


ORDER

New and material evidence having been received, the application to reopen a claim for service connection for bilateral hearing loss is granted.


REMAND

Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

According to the April 2016 VA audiology examination report, the examiner opined that the Veteran's hearing was normal at separation and thus the Veteran's hearing loss was not due to military service and noise exposure from hazardous tank noise.  The Board notes that the etiological opinion offered by the April 2016 VA examiner is inadequate for determining the etiology of the Veteran's hearing loss.  That opinion, while concluding that the Veteran's hearing loss was less likely than not related to service, primarily based that conclusion on the Veteran's "normal" hearing at separation from service.  The Court of Appeals for Veterans Claims has held that the etiology of a Veteran's hearing loss cannot be based solely on a Veteran's "normal" hearing loss at entrance to and separation from service.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

In addition, the Board notes that the December 2015 private medical record reflects an opinion that the Veteran's current hearing loss is at least as likely as not related to his active duty service.  However, the private opinion offers no rationale to support the physician's conclusion that the Veteran's hearing loss is related to active duty service.  A medical opinion cannot be deemed legally adequate without such a supporting rationale.  As such, the private opinion is inadequate for decision purposes. 

The Veteran contends that his hearing loss is due to in-service noise exposure based on his duties as an artillery/armor soldier.  The Board notes that the Veteran's MOS (armor intel specialist) is not listed in the Duty MOS Noise Exposure Listing.  There is no evidence of exposure to acoustic trauma while in service, however, the Veteran contends he was subjected to constant explosions of every kind of military shelling/explosions needed in training.  He also reported participating in numerous combat training exercises using numerous explosives and subjected to low flying Air Force jets.  He also stated he was subjected to tank gun explosions.  See June 2016 statement.  Thus, the Veteran should be afforded a new VA opinion to discuss whether the Veteran's current bilateral hearing loss is related to his claimed in-service acoustic trauma.  


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.  Obtain and associate with the record all of the Veteran's pertinent VA treatment records. 

2.  Refer the case to the VA examiner who conducted the April 2016 VA Audiology examination (or a suitable substitute) for a supplemental medical opinion.  The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss was incurred in or is otherwise related to the Veteran's military service, or began within a year after discharge from service. 

The examiner should note the Veteran's assertions of in-service acoustic trauma as well as take into account his lay statements regarding onset and symptoms.  Specifically, according to the May 2016 notice of disagreement, the Veteran stated that he has had hearing difficulties since he was in the service.  According to his wife's June 2016 statement, she stated that the Veteran needed hearing aids in 1963.  Service treatment records reflect a complaint of ear ache and a finding of impacted cerumen in April 1961.  The absence of evidence of treatment for a specific disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

The examiner should provide a rationale for all opinions expressed.  If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 

3.  Then readjudicate the claim in light of all evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the August 2016 SOC.  An appropriate period of time should be allowed for response before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs