Citation Nr: 1804066 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-25 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for bilateral hearing loss and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for tinnitus and, if so, whether service connection is warranted. 3. Entitlement to service connection for Meniere 's syndrome. 4. Entitlement to service connection for residuals of a head injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2017, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. With regard to the claims to reopen, regardless of any RO determination, the Board must address the question of whether new and material evidence to reopen the claim has been received because the matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly, the Board has characterized the appeal as set forth on the title page. Following the issuance of the June 2017 Supplemental Statement of the Case (SSOC), additional pertinent evidence, including VA treatment records and an August 2017 VA examination report, was added to the claims file. Although the evidence has not been considered by the AOJ in connection with the claims presently on appeal, because the appeal is being remanded, the Veteran will not be prejudiced by the Board reviewing this evidence at this time. 38 C.F.R. § 20.1304 (2017). The petitions to reopen the previously denied claims for service connection and tinnitus are addressed in the decision below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an April 1999 rating decision, the RO denied the Veteran's claim for service connection for hearing loss and tinnitus; he did not appeal this decision. 2. Additional evidence associated with the claims file since the April 1999 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claims for service connection for hearing loss and tinnitus, and it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The April 1999 rating decision in which the RO denied the Veteran's claim for service connection for hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the April 1999 rating decision is new and material, the criteria for reopening the claims for service connection for hearing loss and tinnitus are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim for service connection for hearing loss and tinnitus was denied in an April 1999 rating decision. The RO noted that the Veteran's service treatment records failed to demonstrate hearing loss or tinnitus in service, and the evidence of record failed to demonstrate a relationship between hearing loss and tinnitus and his military service. At the time of the April 1999 rating decision, the evidence of record included his service treatment records. Although notified of the decision and his appellate rights, he did not enter a notice of disagreement with that decision. No further communication regarding his claim for hearing loss and tinnitus was received until December 2012, when VA received his informal petition to reopen his claims. Therefore, the April 1999 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, with regard to the Veteran's claims, such regulation is inapplicable as there is no indication that new and material evidence was received prior to the expiration of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable, as the Veteran's service treatment records were of record at the time of the April 1999 rating decision. Evidence added to the record since the April 1999 rating decision includes his lay statements concerning his in-service and post-service symptoms, including his testimony before the undersigned in August 2017 and statements from various family members, as well as VA treatment records. The Board finds that such evidence is new because it was not before the RO at the time of the April 1999 rating decision. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection for hearing loss and tinnitus, namely the onset and continuity of symptoms since service. Thus, the Board finds that the evidence submitted is both new and material, and the claims are reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. REMAND The Veteran claims entitlement to service connection for hearing loss, tinnitus, residuals of a head trauma, and Meniere's syndrome all as due to an in-service assault sustained while stationed in Bad Kreuznach, Germany. During the August 2017 hearing, he stated that following the assault, he started to experience hearing problems, tinnitus, residuals of a head trauma, and problems with balance. In October 2017, the RO informed the Veteran that his claims file prior to December 2012, including his service treatment records were unavailable. The Board is aware that when service records are unavailable, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005), Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There appears to be outstanding VA treatment records that may be pertinent to the Veteran's claims. While the claims file contains VA treatment records dated from June 2016 to July 2017, those records and the Veteran's August 2017 testimony indicate that he received treatment prior to June 2016. For example, during his August 2017 hearing the Veteran testified that he received treatment at the Salem VA Medical Center (VAMC) dating back to when he was discharged in 1969. Because the VA treatment records currently associated with the record appear to be incomplete, and because any outstanding records, if procured, could bear on the outcome of his claims on appeal, efforts must be made to obtain a complete copy of all VA treatment records, including any records from the Salem VAMC. See 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records, including any hospital records from Bad Kreuznach, Germany. To date, the Veteran has not been afforded a VA examination to determine whether any of his claimed disabilities are related to his military service, to include the claimed in-service assault. As noted in the decision above, the evidence of record includes lay statements concerning his in-service injury and subsequent symptoms following service, including statements from family members. The Board notes that the Veteran is competent to report his in-service assault and symptoms, as well as continuity of symptoms following service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Given the fact that the Veteran's service treatment records were lost through no fault of his own, the lay statements of record are sufficient to trigger VA's duty to assist by affording him VA examinations to address whether his claimed disabilities are related to his military service to include his claimed in-service assault. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates a claim disability may be associated with military service for the purposes of a VA examination). Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records dated from the VAMC in Salem, Virginia, including any records dating back to his initial discharge in 1969. If records dating back to 1969 are unavailable, this should be made clear. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file, including the hospital where he was treated in Bad Kreuznach, Germany. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. After completing the above development, the Veteran should be afforded a VA examination or examinations to determine whether his hearing loss, tinnitus, and/or Meniere's syndrome are related to his military service, to include his claimed in-service assault. The record and a copy of this Remand must be made available to the examiner. The examiner should take a history from the Veteran as to the progression of his hearing loss and tinnitus disabilities. On examination, the examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should also clarify whether the Veteran has current diagnoses of tinnitus and/or Meniere's syndrome. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, interview of the Veteran, and examination, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that a hearing loss disability, tinnitus, or Meniere's syndrome had its onset during, or is otherwise related to, his active duty service, to include an in-service blow to the head as he so describes? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. To the extent they are relevant but remain missing from the file, the Veteran's audiometric testing scores upon separation from service in October 1968 have been copied into the body of an April 1999 rating decision, and include notation that the separation examiner diagnosed "slight hearing loss." A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any documented problems in the Veteran's service treatment records as they are unavailable. 4. After completing the above development, the Veteran should be afforded a VA examination to determine whether he suffers from residuals of a head trauma that are related to his military service, to include his claimed in-service assault. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should clarify whether the Veteran suffers from residuals of a head trauma, to include headaches. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that any identified residuals of a head trauma had their onset during, or are otherwise related to, his active duty service, to include an in-service blow to the head as he so describes? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any documented problems in the Veteran's service treatment records as they are unavailable. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a SSOC and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (2014). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs