Citation Nr: 1801105 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-27 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right eye injury. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches, to include as secondary to a right eye injury. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for a right eye injury. 6. Entitlement to service connection for headaches, to include as secondary to a right eye injury. REPRESENTATION Veteran represented by: Sherri Stone, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to April 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at an October 2017 Board hearing. The issues of service connection for tinnitus and a back disorder have been raised by the record in a November 2017 claim, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for bilateral hearing loss, an eye injury, and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. By a September 1999 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss; he was advised of the RO's decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year; nor was new and material evidence received within a year. 2. Additional evidence received since the RO's September 1999 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 3. By a September 1999 rating decision, the RO denied the Veteran's claim for service connection for a right eye injury; he was advised of the RO's decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year; nor was new and material evidence received within a year. 4. Additional evidence received since the RO's September 1999 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a right eye injury, and raises a reasonable possibility of substantiating the claim. 5. By a September 1999 rating decision, the RO denied the Veteran's claim for service connection for headaches; he was advised of the RO's decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year; nor was new and material evidence received within a year. 6. Additional evidence received since the RO's September 1999 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for headaches, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's September 1999 rating decision to deny service connection for bilateral hearing loss is final. 38 U.S.C. §§ 7105 (1991); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. The RO's September 1999 rating decision to deny service connection for a right eye injury is final. 38 U.S.C. §§ 7105 (1991); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). 4. New and material evidence has been received to reopen the Veteran's claim for service connection for a right eye injury. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 5. The RO's September 1999 rating decision to deny service connection for headaches is final. 38 U.S.C. §§ 7105 (1991); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). 6. New and material evidence has been received to reopen the Veteran's claim for service connection for headaches. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Claims In the present case, the RO, by a decision entered in September 1999, denied the Veteran's claims for service connection for bilateral hearing loss, right eye injury, and headaches on grounds that there was no well grounded evidence that the injuries were caused or incurred in service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (1999). As a result, the RO's decision became final. 38 U.S.C. §§ 7105 (1991); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2016); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Prior to the 1999 decision, evidence included service treatment records. The evidence received since the time of the RO's September 1999 rating decision includes his October 2017 hearing testimony during which he explained that he had hearing loss after a grenade explosion, and that his eye injury occurred when he had to remove his helmet. This evidence was not before adjudicators when the Veteran's claim was last denied in September 1999 and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claims for service connection for a bilateral hearing loss, a right eye disability, and headaches, and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for a right eye injury is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for headaches is reopened. REMAND First, the Veteran testified at his October 2017 hearing that he had relevant treatment records from Ocala Eye Care and also Dr. R.L. These records should be obtained upon remand. Next, in general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2017). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b) (2017). Cases in which the condition is noted on entrance are governed by 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2017). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b) (2017). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2017). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In the instant case, the Veteran was noted to have high frequency hearing loss in his left ear upon entrance into service; this was not noted regarding his right ear. Regarding his eye claim, he was noted to have defective distant vision upon entry into service. See August 1999 Report of Medical Examination. The Veteran testified at his October 2017 hearing that when he doing an exercise crawling through barbed wire that his helmet was stuck in the wire and got lodged in his eye, so that when he tried to pull his helmet off, it caused his eye to roll back. He also stated that in regards to his hearing loss that during basic training a grenade went off within a five feet of himself and that afterwards he had problems hearing. He also submitted a buddy statement by a fellow service member, who confirmed the Veteran told him about these incidents during service. With regard to service connection for his claimed hearing loss, eye disability, and headaches, the Veteran has not yet been afforded VA examinations. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran is competent to give evidence about what he experienced in service that is subject to lay subject to lay observation, including being close to a grenade explosion and hitting his eye with his helmet. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that the Veteran should be afforded VA examinations to determine the nature and etiology of his claimed disabilities. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding private records, including from Ocala Eye Care, and Dr. R.L. All records/responses received must be associated with the electronic claims file. 2. Schedule a VA examination to provide an opinion concerning the nature and etiology of the Veteran's claimed bilateral hearing loss. The electronic claims file must be made available to and be reviewed by the examiner. Following review of the claims file the examiner should the following provide opinions: a. In the specific instance of the left ear, the examiner should address whether the left ear high frequency hearing loss noted on the service entry examination was at least as likely as not (i.e., probability of 50 percent or greater) aggravated (i.e., permanently increased in severity) during that period of service. A complete rationale for the opinion must be provided. b. If so, was any increase clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. A complete rationale for the opinion must be provided. c. Regarding right ear hearing loss, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hearing loss is etiologically related to service. The examiner should discuss the Veteran's competent report that during basic training a grenade went off within a five foot radius of himself and that afterwards he had problems hearing. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 3. Schedule a VA examination to provide an opinion concerning the nature and etiology of the Veteran's claimed right eye injury. The electronic claims file must be made available to and be reviewed by the examiner. Following review of the claims file the examiner should provide the following opinions: a. Identify any current eye disability or residuals of right eye injury. b. In the specific instance of defective distant vision noted upon entry into service, the examiner should address whether this vision disability noted on service entry examination was at least as likely as not (i.e., probability of 50 percent or greater) aggravated (i.e., permanently increased in severity) during that period of service. A complete rationale for the opinion must be provided. c. If so, was any increase clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. A complete rationale for the opinion must be provided. d. Regarding any other eye disabilities or right eye injury residuals including headaches and dizziness, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that residual is etiologically related to the Veteran's claimed eye injury in service. The examiner should discuss the Veteran's competent report that when he completed an exercise crawling through barbed wire that his helmet was stuck in the wire and got lodged in his eye, so that when he tried to pull his helmet off, it caused his eye to roll back. A discussion of the complete rationale for all opinions expressed should be included in the examination report. The examiners are asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). The 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. §§ 5109B, 7112 (2012). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs