Citation Nr: 1803404 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-31 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for a bilateral eye disability, to include glaucoma, blindness, and detached retinas. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force with active duty from August 1951 to July 1955 and from August 1955 to September 1962. The Veteran had additional service with the Air Force Reserve and with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In June 2013, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer at the Board. In October 2017, the Veteran was informed that the Veterans Law Judge who conducted his hearing was no longer at the Board and he was informed of his right a new hearing. In correspondence received December 2017, the Veteran declined another hearing. The Veteran also testified before the RO in August 2016. Both transcripts are of record. The Board notes that the Veteran currently has an appeal pending for entitlement to service connection for a left shoulder disability. However, on the Veteran's August 2017 VA Form 9, the Veteran stated that he wished to have Travel Board hearing on this issue. To date, the Veteran has not yet been afforded a hearing on this issue, and therefore, it is not before the Board at this time. This claim was previously before the Board in May 2015, at which time it was remanded for further development, to include procurement of the Veteran's military personnel files, specifically for his Guard and Reserve service. As the May 2015 remand directives have been substantially complied with, claim has now returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268. 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 issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for a bilateral eye disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2007 rating decision denied the Veteran's claim for entitlement to service connection for right ear hearing loss. The Veteran did not appeal that decision and it became final. 2. The additional evidence submitted since the October 2007 rating decision is new and material, as it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied the Veteran's claim for entitlement to service connection for right ear hearing loss is final. 38 U.S.C. §§ 7104, 7015(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103(A) (2012); 38 C.F.R. § 3.159 (2017). However, as discussed below, the Board is reopening the Veteran's claim for entitlement to service connection for right ear hearing loss and remanding the rest of the appeal back to the AOJ, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary. II. New and Material Evidence The Veteran and his representative contend that the Veteran's current right ear hearing loss had its onset in service. The Veteran's claim for entitlement to service connection for right ear hearing loss was originally denied in October 2007, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. 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(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. At the time of the October 2007 rating decision that denied the Veteran's claim for entitlement to service connection for right ear hearing loss, the competent evidence of record included the Veteran's service treatment records and post-service treatment records. However, the Veteran was not provided with a VA examination. The Board finds that new and material has been submitted since the October 2007 rating decision. Specifically, the newly submitted evidence includes sworn testimony from the Veteran, military personnel records from the Veteran's Guard and Reserve service, a September 2010 VA medical examination, and a January 2015 VA medical opinion. The Board finds that the sworn testimony, personnel records, and medical opinions are new in that they were not of record at the time of the previous denial. They are material in that they speak directly to the Veteran's claim of service connection for right ear hearing loss.. Furthermore, when considered with the previous evidence of record, they could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 118 (2010). The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claim for service connection for right ear hearing loss is reopened. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss, and the claim is reopened. REMAND While the Board sincerely regrets further delay, additional development is required before the Veteran's claims for entitlement to service connection for bilateral hearing loss and a bilateral eye disability may be adjudicated on the merits. With respect to the Veteran's claim for entitlement to service connection for bilateral hearing loss, the Board notes that the Veteran was afforded a VA examination in September 2010 and an addendum medical opinion in January 2015. While the examiners both noted that the Veteran worked around aircraft. The examiners opined that the Veteran's hearing was normal on discharge and that there was no evidence to support permanent acoustic trauma to his ears. However, the Board does not find this opinion to be adequate. Specifically, the Board notes that the examiners improperly relied solely on the absence of documentary evidence as a rationale for the negative nexus opinion. Dalton v. Nicholson, 12 Vet. App. 23. Additionally, the examiners do not take into account the Veteran's sworn testimony, in which he states that his hearing loss began while he was in-service and manifested to such a degree that he received hearing aids shortly after being discharged. See, June 2013 hearing transcript. Accordingly, a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, with respect to the Veteran's claim for service connection for a bilateral eye disability, to include glaucoma, the Board notes that the RO obtained a medical opinion in January 2015 that did not include an examination of the Veteran. In this medical opinion, the VA examiner opined that the Veteran's current eye disability was not related to service and was not related to a traumatic event in service as the disability would have manifest near the time of the incident. However, in coming to this conclusion, the examiner does not address the Veteran's lay statements in which he stated that following a head injury in 1957, he was prescribed prescription glasses and that his eyesight deteriorated rapidly from that point onwards. Accordingly, an actual examination is warranted to properly address the Veteran's lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Obtain any outstanding VA and private treatment records and associate them with the Veteran's claims file. 2. After obtaining any outstanding records, schedule the Veteran for VA examinations with the appropriate medical personnel other than the examiners who have previously examined the Veteran. The entire claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinions: a. Whether it is at least as likely as not that the Veteran's bilateral hearing loss had its onset during service or is otherwise etiologically related to his active duty service, specifically to include his exposure to aircraft noises while working as an aircraft technician and engineer. The examiner is asked to specifically address the Veteran's lay statements with respect to when he contends that his hearing loss began in formulating his opinion. b. Whether it is at least as likely as not that the Veteran's bilateral eye disability, to include glaucoma, blindness, and detached retinas had its onset in service or is otherwise etiologically related to his active duty service. The examiner is asked to specifically address the Veteran's lay statements regarding the detonation of his eye sight following an in-service injury to his head. A complete rationale must be provided for all findings and conclusions reached. The examiner should discuss any lay statements made by the Veteran with respect to the etiology of his claimed disabilities. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definite opinion can be obtained. 3. Then, and after undertaking any additional development deemed necessary, readjudicate the remaining issue on appeal. If any benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and allowed an appropriate period of time to respond before the case is returned to the Board, if in order. The appellant 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 J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs