Citation Nr: 1802265 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-20 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for left-ear hearing loss. 2. Entitlement to of service connection for left-ear hearing loss. 3. Entitlement to a compensable evaluation of right-ear hearing loss. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from April 1958 to February 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In November 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript has been associated with the file. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. 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). The issues of entitlement to of service connection for left-ear hearing loss and entitlement to a compensable evaluation of right-ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 1979 rating decision having denied the Veteran's claim of entitlement to service connection for hearing loss, to include the left ear, the Veteran was notified of his appellate rights, but did not submit new and material evidence within one year or complete an appeal of the rating decision. Reopening of the claim was denied by final rating action of June 2005. No appeal was instituted following that rating. 2. Evidence added to the record since the June 2005 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for left-ear hearing loss. CONCLUSIONS OF LAW 1. The December 1979 and June 2005 rating decisions, which denied the Veteran's claim of service connection for hearing loss, to include the left ear, are final. 38 U.S.C. § 7105 (c) (2012). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for left-ear hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. The Veteran was afforded a Compensation and Pension examination in July 2013, which produced findings pertinent to deciding the claim for entitlement to service connection for left-ear hearing loss. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination adequate for its purpose. Moreover, neither the Veteran nor his representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). New and Material Evidence In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Here service connection for hearing loss was initially denied in December 1979. Subsequently, in June 2005, following an application to reopen the claim, service connection was granted for right ear hearing loss. Service connection was denied for the left ear hearing loss and it was held new and material evidence had not been submitted. Essentially it had been determined that he did not meet the criteria for a hearing loss disability in the left ear for VA compensation purposes. The RO reopened the Veteran's claim in a September 2013 rating decision, based on new and material evidence, but confirmed and continued the previous denial. However, regardless of what the RO has determined with respect to new and material evidence, the Board must make its own determination, as this in turn establishes the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). The Veteran has provided testimony at the November 2017 Board hearing, giving detailed accounts of prolonged exposure to excessive noise levels over many years in service, particularly from jet aircraft. Additionally, the Veteran has submitted September and October 2017 "Nexus Statements," in which Drs. C.Z. and S.M. have rendered positive opinions. There is also a reported Maryland CNC word test that suggests he may now have some hearing loss for disability as defined by VA. The Board therefore affords the Veteran the benefit of the doubt and finds that new and material evidence has been received showing that there may be a relationship between the Veteran's current left-ear hearing loss and an in-service injury. As this new evidence raises a reasonable possibility of substantiating the claim, it satisfies the criteria of 38 C.F.R. § 3.156 (a) for new and material evidence and the claim is reopened. ORDER New and material evidence having been received to reopen the claim of service connection for left-ear hearing loss, the appeal is granted to that extent only. REMAND Both the Veteran's testimony and that of his wife at the November 2017 Board hearing provide numerous details of possible worsening right-ear hearing loss. Moreover, the Board notes that the VA audiological examination was in July 2013, approximately four and a half years ago. Given the passage of time, the Board needs current findings to determine if in fact the Veteran's right-ear hearing loss has worsened. It is noted that the July 2013 VA audiological examination recorded a puretone threshold of 35 dB at 4000 Hz. This coupled with a recently reported hearing test that showed Maryland CNC testing revealed a threshold of 92 percent, suggests further examination of the left ear is warranted. 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 Veteran and/or his representative for information pertaining to any current treatment for any hearing loss at any VA facility and by any private treatment provider. Obtain any records pertaining to that treatment not yet associated with the claims file and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, schedule the Veteran for an examination with a VA examiner with an appropriate specialty to produce audiological findings. The examination should provide findings and diagnoses as to the nature, extent and current severity of both the left ear and the right ear, to include a review of the entire electronic claims file. Specifically, the examiner's findings should include whether the Veteran's left-ear hearing loss could be the result of noise trauma incurred in service and whether the Veteran's right-ear hearing loss has worsened since the July 2013 VA examination. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all audiological findings. All indicated tests should be accomplished and all findings reported in detail. The examiner is further requested to render an opinion, addressing: Whether is at least as likely as not (a probability of at least 50 percent) that the Veteran's left-ear hearing loss, if found, is etiologically related to service. The examiner should provide a rationale explaining the basis for the opinion. The examiner should comment on the findings and opinions of other examiners, which appear in the record. In addition, the opinion should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's left ear hearing loss, including the Veteran November 2017 Board hearing testimony, that of his wife, the Veteran's lay statements, any lay statements of his wife, family members, friends, co-workers, or others, as well as the Veteran's reports to providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. If an opinion cannot be made without resort to speculation, that examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. 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 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs