Citation Nr: 1757082 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-12 386 ) 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 the claim of entitlement to service connection for right ear hearing loss, and if so, whether service connection is warranted. 2. Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decision issued in January 2013 and February 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for right ear hearing loss and service connection for diabetes mellitus type II, are addressed in the REMAND that follows the below ORDER. FINDINGS OF FACT 1. An August 2009 rating decision denied a claim of entitlement to service connection for bilateral hearing loss; the Veteran did not appeal the decision and no new and material evidence was received within one year of the denial. 2. The evidence added to the record after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for right ear hearing loss. CONCLUSION OF LAW Subsequent to the final August 2009 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist As explained below, the Board determines that the evidence currently of record is sufficient to reopen the Veteran's claim for service connection for right ear hearing loss. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017). II. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156 (a). The Court 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (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). In an August 2009 rating decision, the claim of entitlement to service connection for bilateral hearing loss was denied because no evidence had been received showing treatment for hearing loss from discharge to the present. The Veteran did not appeal that decision or submit new and material evidence within one year of the denial, and so, the decision became final. In connection with the new claim filed by the Veteran in September 2012, a VA examination was performed in November 2012 that revealed that the Veteran had a speech discrimination score of 80 percent in the right ear, which is a hearing loss disability under VA regulations. See 38 C.F.R. § 3.385 (2017). This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim for service connection for right ear hearing loss, namely, a current disability. The claim to reopen the claim of entitlement to service connection for right ear hearing loss is granted. ORDER New and material evidence having been received, the claim to reopen entitlement to service connection for right ear hearing loss is granted. REMAND The Board determines that a remand is necessary for the claims for service connection for right ear hearing loss and diabetes mellitus type II. At his hearing in April 2017, the Veteran testified to receiving treatment at VA facilities in Beaumont and Houston. However, the only VA medical records in the claims file are dated from April 2011 to October 2012. Therefore, the appeal is remanded so that any VA treatment notes dated from October 2012 to the present can be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). In addition, the opinion provided by the November 2012 VA examiner is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner opined that the Veteran's hearing loss is less likely as not caused by or a result of noise trauma during military service based on the fact that although the Veteran has experienced a significant threshold shift since service, the hearing thresholds are normal under VA criteria. However, the examiner appears to not have considered the Veteran's speech discrimination score as representing a hearing loss disability. Therefore, another VA examination is in order. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include outstanding VA treatment notes dated from October 2012 to the present. 2. Obtain another opinion from an audiologist to determine the etiology of the Veteran's right ear hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner. Based on the review of the record, the examiner should state a medical opinion with respect to the Veteran's right ear hearing loss as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disorder originated during active service or is otherwise etiologically related to active service, to include in-service noise exposure. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of the claimed in-service injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). This REMAND 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). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs