Citation Nr: 18155081 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-03 627 DATE: December 4, 2018 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is, to this extent only, reopened. New and material evidence having been received, the claim of service connection for a heart condition is, to this extent only, reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. A March 1988 Board decision denied the Veteran’s claim of service connection for bilateral hearing loss and the Veteran was properly notified of the decision. 2. Evidence received since the March 1988 Board decision relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and raises a reasonable possibility of substantiating such claim. 3. A March 1988 Board decision denied the Veteran’s claim of service connection for a heart condition and the Veteran was properly notified of the decision. 4. Evidence received since the March 1988 Board decision relates to an unestablished fact necessary to substantiate the claim of service connection for a heart condition; and raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The March 1988 Board decision that denied a claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). 3. The March 1988 Board decision that denied a claim for service connection for a heart condition is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 4. New and material evidence has been received, and the claim for service connection for a heart condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to July 1984. These matters are before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and November 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s heart condition claim has previously been characterized as being for ischemic heart disease. Based on the nature of the Veteran’s heart condition, specifically the numerous diagnoses in the record, the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for a heart condition. This more general characterization will ensure that any heart diagnosis is considered, including cardiomyopathy, atrial fibrillation, supraventricular arrhythmia, conduction disorder, implanted cardiac pacemaker, and hypertensive heart disease. Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence The Veteran originally filed a claim for these conditions in September 1984 and was last and finally denied service connection in a March 1988 Board decision. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. Service connection was previously denied in a September 1984 rating decision. The Veteran appealed the matter and in a March 1988 Board decision, the Board denied the Veteran’s claim based on a lack of a current disability. The Board provided the Veteran with proper notification of the decision. At the time the decision was issued, there was no right to appeal the Board’s decision. Therefore, the March 1988 Board decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence of record at the time of the March 1988 Board decision consisted of the Veteran’s DD-214, service treatment records (STRs), VA treatment records, an October 1985 VA examination, and private treatment records from the Grand Forks Clinic. The evidence associated with the claims file after the March 1988 Board decision includes an October 2012 VA examination, an April 2013 lay statement from the Veteran’s wife, lay evidence from the Veteran on his December 2013 Notice of Disagreement, medical literature submitted in December 2013, lay statements from the Veteran on December 2014, and a private audiometry examination from March 2018. All of the evidence listed above is new in that it was not of record at the time of the March 1988 Board decision. Most pertinently, the October 2012 VA examination is new, in that it was not previously of record. The October 2012 VA examination is also material as it showed the Veteran has current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The claim was initially denied based on the premise that the Veteran did not have current hearing loss for VA purposes. Since a lack of a current disability was the basis for denial of the claim for bilateral hearing loss in the prior Board decision, this new evidence relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. As new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss, reopening the claim is warranted. 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen a claim of service connection for a heart condition The Veteran also contends that he is entitled to service connection for a heart condition. Service connection was previously denied in a September 1984 rating decision. The Veteran appealed the matter and in a March 1988 Board decision, the Board denied the Veteran’s claim based on a lack of a current disability that was caused by or aggravated by service, regardless of the reference to in-service treatment for chest pains or hospitalization for transient ischemia attacks (TIA). The Board provided the Veteran with proper notification of the decision. At the time the decision was issued, there was no right to appeal the Board’s decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence of record at the time of the March 1988 Board decision consisted of the Veteran’s DD-214, STRs, VA treatment records, and an October 1985 VA examination. The evidence associated with the claims file after the March 1988 Board decision includes a July 2012 statement from the Veteran, a July 2012 Disability Benefits Questionnaire (DBQ) completed by Dr. B.P., an April 2013 DBQ completed by Dr. B.P., an April 2013 VA Form 21-4138, Statement in Support of Claim, from the Veteran, a November 2013 VA examination, lay evidence from the Veteran’s January 2014 Notice of Disagreement, lay statements from the Veteran in December 2014, a VA opinion in December 2014, and lay statements from the Veteran on his January 2015 VA Form 9. All of the evidence listed above is new in that it was not of record at the time of the March 1988 Board decision. Most pertinently, the April 2013 VA examination is new, in that it was not previously of record. The April 2013 VA examination is also material as the claim was initially denied based on the premise that the Veteran did not have a current condition related to or aggravated by his service. In the April 2013 DBQ completed by Dr. B.P., he opined that the Veteran had long-standing rhythm problems with his heart and that they began during his active duty service. Since a lack of a current disability which was related to service was the basis for denial of the claim in the prior Board decision this new evidence relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. As new and material evidence has been received to reopen the claim for service connection for a heart condition, reopening the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND As the claims for service connection for bilateral hearing loss and a heart condition have been reopened, the Board must now shift to evaluating the claims on the merits and the Board has determined that a remand is necessary. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was provided a VA examination in December 2012 for his claimed bilateral hearing loss. The VA examiner opined that the Veteran’s hearing loss after service was not related to his service in the absence of a significant threshold shift in service, as there was a slight shift at the 6000 hertz in the left ear only. The Board finds the examiner’s opinion to be inadequate. The examiner’s negative nexus opinion lacks any meaningful rationale, as he only indicates that the Veteran’s separation examination did not reveal hearing loss to an extent required to support the Veteran’s current level of hearing loss. The December 2012 VA examiner also referenced the results of the January 1985 VA examination, which did not reflect hearing loss for VA purposes, as support that any current hearing loss could not be related to his active duty. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). It should be noted that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. There may be a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, 5 Vet. App. at 159. In a December 2014 lay statement from the Veteran, he argued that he was exposed to loud aircraft noise during his 21 years in the military. In December 2013 he also submitted medical literature regarding noise-induced hearing loss. As such, the Board finds that another VA examination must be obtained for an adequate examination that does not consider only the lack of a threshold shift in service and also considers the Veteran’s lay statements regarding acoustic trauma and to consider submitted medical literature. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a heart condition is remanded. The Veteran also claims that he has a heart condition related to his in-service chest pains and hospitalizations related to TIA. As noted above, the Veteran was provided a VA examination, a separate VA opinion was submitted, and his private cardiologist has submitted 2 DBQ’s. The VA examiners have opined that the Veteran’s in-service chest pains and heart complaints were transient and therefore could not be related to his current heart disabilities. However, the Veteran’s cardiologist indicated that at least one of his heart conditions is likely related to his treatment for chest pains or heart complaints in-service. In his January 2015 VA Form 9, Substantive Appeal, the Veteran argued that he has had trouble with symptoms of what he thought may be a heart condition from the time he was in service, the etiology of which he does not claim to know. The Board finds that none of the 3 examinations and 4 opinions regarding the etiology of his various heart conditions have adequately addressed the Veteran’s claims of continuity or adequately discussed the relationship between the Veteran’s in-service complaints of and treatment for chest pains and heart problems and the current heart diagnoses. As such, the Veteran should be provided an adequate VA examination which considers his allegations of continuity and adequately addresses his in-service treatment in light of each current heart disability. Barr, 21 Vet. App. at 312. As it is apparent the Veteran has received both private and VA treatment for his conditions, updated treatment records should be obtained. The matters are REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him VA Form 21-4142, obtain any identified records from Dr. B.P. and any additional private records showing treatment for the claimed conditions identified by the Veteran. Obtain the Veteran’s VA treatment records from October 2014 to the present. 2. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of bilateral hearing loss. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including acoustic trauma in service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed heart conditions. The clinician must: (a) Identify each current heart condition the Veteran has had during the pendency of the appeal (since July 2012), to include cardiomyopathy, atrial fibrillation, supraventricular arrhythmia, conduction disorder, implanted cardiac pacemaker, and hypertensive heart disease. (b) Explain whether any identified heart condition qualifies as ischemic heart disease. (c) If none of the Veteran’s identified heart conditions qualify as ischemic heart disease, then opine whether it is at least as likely as not related to an in-service injury, event, or disease, including hospitalizations for TIA and chest pains in service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel