Citation Nr: 1808868 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-11 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active duty from December 1978 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board video conference hearing. A transcript of that hearing is associated with the claims file. The claim for 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 September 1993 rating decision, the RO denied service connection for bilateral hearing loss; the Veteran did not file a notice of disagreement and no new and material evidence was received within the appeal period. Thus, the September 1993 rating decision is final. 2. The evidence received since the September 1993 rating decision is not duplicative or cumulative of evidence previously of record and relates to unestablished facts necessary to substantiate the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The September 1993 rating decision that denied the Veteran's claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 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 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor her representative has raised any issues with 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 Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim for service connection for bilateral hearing loss was originally denied in September 1993, on the basis that audiometric findings failed to show hearing loss for VA purposes under 38 C.F.R. § 3.385. The Veteran was informed of the decision and of her appellate rights, but he did not appeal that decision. The Veteran was informed of the decision and of his appellate rights, but he did not appeal that decision and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a request to reopen his claim in August 2012. The evidence of record at the time of the September 1993 rating decision included the Veteran's service treatment records, which contained numerous audiograms throughout the Veteran's service, which do not reflect audiometric findings consistent with hearing loss for VA purposes, although generally showing an upward shift in threshold levels at some frequencies. Additionally, in a September 1990 Report of Medical History the Veteran endorsed hearing loss and the examiner noted hearing loss and referred to audiometric findings. Also in the record was a VA audio examination report dated in February 1993, which noted 11 years of in-service noise exposure as a combat engineer around heavy equipment and explosives, but found no evidence of hearing loss in either ear, with the exception of a moderate hearing loss in the right ear at the tested frequency of 800 Hertz. The evidence received since the prior final denial includes VA treatment records and an October 2012 VA audio examination report that noted hearing loss for VA purposes in the right ear. Also of record is the Veteran's testimony asserting that he developed bilateral hearing problems in service, which progressively worsened throughout the years. Such evidence is new as it was not previously of record. It is also material, as it relates to an unestablished fact necessary to substantiate the claim, namely evidence of a current hearing loss disability for VA purposes that may be related to noise exposure in service. Moreover, such evidence must be presumed credible for the purposes of new and material evidence analysis. Accordingly, as new and material evidence has been submitted, the claim for service connection for bilateral hearing loss is reopened. ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted. REMAND The Veteran contends that he developed his currently diagnosed bilateral hearing loss due to in-service acoustic trauma. On VA examination and at his Board hearing, the Veteran testified to hazardous noise exposure from artillery and other weapons, heavy equipment and construction. He has consistently denied occupational or recreational noise exposure. The Veteran's DD Form 214 indicates that his military occupational specialty was combat engineer. The Board finds that the Veteran's lay account of having been exposed to military noise is both competent and credible. On VA examination in October 2012, the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 15, 10, 15, and 45, in the right ear; and in the left ear were 15, 5, 15, 20, and 15. Speech discrimination was 100 in the right ear and 96 in the left ear. The examiner opined that the Veteran's hearing loss was less likely than not caused by service because the Veteran's hearing was found to be within normal limits, bilaterally, on separation from service in September 1990. The examiner explained that there was nothing in the scientific or medical literature that supported the contention for a delayed onset of hearing loss related to prior noise exposure. However, hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993); see also 38 C.F.R. § 3.303 (d). As a result, the rationale that the VA examiner provided is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Moreover, the examiner did not address the numerous audiograms throughout the Veteran's service, which generally progressively showed an upward shift in threshold levels at some tested frequencies, nor did the examiner comment on the fact that on separation from service in September 1990 the Veteran reported a history of hearing loss. Accordingly, reexamination is needed. On remand, relevant ongoing medical records should also be requested. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding relevant VA treatment records. 2. After the above development is completed, schedule the Veteran for a VA audiology examination to determine whether hearing loss is present, and if so, whether it is associated with acoustic trauma in service. The examiner must review the claims file and must note that review in the report. The examiner should note that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements. A complete history of symptoms should be elicited from the Veteran. Any tests and studies deemed necessary should be conducted and all findings should be reported in detail. In rendering the opinions detailed below, please discuss the significance of the in-service noise exposure the Veteran has described, the in-service audiograms and documented threshold shifts from service induction to separation from service, and the Veteran's report of hearing problems on separation from service in September 1990. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the opinions. The audiologist should review the claims file and respond to the following: (a) Is it at least as likely as not (50 percent probability or more) that any current right and/or left ear hearing loss disability found on examination, is related to his period of active duty service, to include his reported in-service acoustic trauma? Please explain why or why not, specifically discussing why his current hearing loss is/is not a delayed response to his in-service noise exposure. Furthermore, if the audiologist attributes the Veteran's current hearing loss exclusively to post-service acoustic trauma, then he or she should explain the basis for the conclusion that the in-service acoustic trauma did not result in permanent hearing loss. (b) If it is less likely than not that any current right and/or left ear hearing loss disability found on examination, had its clinical onset during his period of active service, is it at least as likely as not that any such hearing loss had its clinical onset within one year of his separation from service in October 1990? Please explain why or why not, specifically discussing why his current hearing loss is/is not merely a delayed response to his in-service noise exposure. A discussion of the underlying reasons for any opinions expressed must be included in the audiologist's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. 3. Finally, readjudicate the appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, 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. §§ 5109B, 7112 (2012). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs