Citation Nr: 1801730 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-35 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran presented testimony before the undersigned Veterans Law Judge in a November 2017 videoconference hearing. A transcript of this hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic 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) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The reopened issue of entitlement to 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 a March 2010 decision, the Board denied service connection for bilateral hearing loss. 2. Evidence added to the record since the March 2010 Board decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The March 2010 Board decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, 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). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a March 2010 decision, the Board denied service connection for bilateral hearing loss because a nexus was not found between the Veteran's present disability and conceded noise exposure during his military service. The Veteran did not appeal that decision. The decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Evidence of record at the time of the 2010 decision includes: 1) the Veteran's service treatment records; 2) private treatment records; 3) an October 2006 VA examination; 4) VA treatment records; and 5) the Veteran's statements, to include his testimony before a member of the Board in December 2007. Service treatment records show normal audiometric findings in March 1965, May 1966, June 1967, and May 1968, and November 1968. They document a complaint of left ear pain in September 1964. His DD-214 shows a military occupational specialty of pilot, and the March 2010 Board decision conceded exposure to aircraft noise. The October 2006 VA examination report documents a present diagnosis of bilateral hearing loss and the VA examiner's opinion that bilateral hearing loss is not caused by or a result of the Veteran's military service. The VA treatment records show a present diagnosis of bilateral hearing loss. A private audiological evaluation from November 2001 shows bilateral hearing loss. A June 2008 opinion from Dr. TLB, an audiologist, shows her opinion that the Veteran's difficulty hearing in the presence of background noise more than likely may have originated while he served in the Air Force. Evidence submitted after the 2010 decision includes 1) the Veteran's June 2014 claim to reopen; 2) a June 2014 audiology test report ; 3) a February 2014 VA audiology test report; and 4) the Veteran's testimony in the November 2017 Board hearing. The private and VA treatment records show a present disability of bilateral hearing loss for VA purposes. In the 2017 hearing, however, the Veteran testified that he remembered having to turn the radio up to hear during service and that his wife had first noticed his diminished hearing in the 1980s. The Veteran indicated that his diminished hearing was becoming noticeable at that time. Most pertinent to the issue of whether new and material evidence has been received, the Veteran's November 2017 testimony provided more specificity than the January 2008 testimony. As noted by the Board in March 2010, the Veteran had stated at the time of the January 2008 hearing that he was unsure whether his bilateral hearing loss began in service. However, in the November 2017 hearing, he testified that his wife had brought his diminished hearing to his attention in the 1980s, and that was when he became consciously aware of the changes he had made in his living tendencies to accommodate his diminished hearing. His testimony strongly suggests that he had been making changes to account for hearing difficulties prior to his wife commenting on his diminished hearing in the 1980s. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence suggestive of diminished hearing during service and continuity of hearing loss since service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. REMAND The Board finds that remand is appropriate for the newly reopened claim of entitlement to service connection for bilateral hearing loss for an adequate examination and opinion. The only examination of record is from October 2006. At that time, the examiner opined that the Veteran's hearing loss was not caused by or a result of military service. The examiner premised his opinion on reports of hearing loss having onset only eight to ten years earlier and the nature of the Veteran's hearing loss not being consistent with noise exposure. However, as indicated in the November 2017 hearing, the Veteran has testified that hearing loss was noted by his spouse as early as the 1980s, and he suggested that hearing loss had preexisted this time because he had been suffering from reduced hearing before then. The Board finds the Veteran's statements to be credible, and his account of his history of hearing loss must be addressed by a VA examiner. 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. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral hearing loss. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had onset in or is otherwise related to the Veteran's military service, to include exposure to acoustic trauma therein. The examiner must specifically address the following: 1) the Veteran's competent and credible statements describing the gradual onset of hearing loss that was noticed by his wife in the 1980s; 2) the Veteran's competent and credible statements denying post-service occupational noise exposure; and 3) the Veteran's statements that he noticed that he had to turn the volume up with equipment to hear better during service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs