Citation Nr: 1815302	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  12-31 519	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a headache disorder, to include as secondary to service-connected tinnitus.

3.  Entitlement to a rating in excess of 10 percent for a service-connected left great toe disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel
INTRODUCTION

The Veteran had active service in the Army from February 1972 to May 1974.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In October 2012, the Veteran requested a Board hearing.  On February 6, 2018, he received notification that a video hearing was scheduled for February 21, 2018.  Unfortunately, he did not appear at the hearing, and has neither requested a new hearing, nor provided good cause for his absence.  As such, the Veteran's hearing request is considered to have been withdrawn.  See 38 C.F.R. § 20.704 (2017).

The issues of entitlement to service connection for a headache disorder and entitlement to an increased rating for a left great toe disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A June 2004 rating decision denied the Veteran's claim of entitlement to service connection for bilateral hearing loss; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision, and evidence obtained since the June 2004 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for bilateral hearing loss.






CONCLUSIONS OF LAW

1.  The June 2004 rating decision which denied entitlement to service connection for bilateral hearing loss is final.  38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003).

2.  New and material evidence has not been submitted, and the Veteran's claim for service connection bilateral hearing loss is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claim at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records (STRs), VA treatment records, and private treatment records have been obtained.  Additionally, the Veteran was scheduled for a hearing before the Board, but he did not appear.

The Veteran was also provided a VA examination and neither he, nor his representative, has objected to the adequacy of the examination conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 
 
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Reopening Claim
	
Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c).  The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C. § 5108.

New evidence means 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 submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.  The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."

In March 2004, the Veteran filed a claim seeking service connection for bilateral hearing loss, which he asserted was due to noise exposure from operating heavy equipment during his active service.  His claim was denied in a June 2004 rating decision, and the Veteran neither appealed the rating decision, nor submitted any new and material evidence pertaining to this issue within a year of that rating decision, meaning that the rating decision became final.  See 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003).

At the time of the June 2004 rating decision, the evidence of record did not contain competent lay or medical evidence did not show a diagnosis of bilateral hearing loss either in service or within a year of his separation from service.  As such, the RO denied his claim.

In a statement received in November 2008, the Veteran sought to have his previously denied claim for entitlement to service connection for bilateral hearing loss reopened.  He continued to report that his hearing loss was due to noise exposure from operating heavy equipment during his active service.

The Veteran's STRs show that at his entrance examination in January 1972, audiological test results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5

25
LEFT
20
20
15

20

At his separation examination in February 1974, audiological test results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10

10
LEFT
5
5
10

5

The Veteran's STRs show that his hearing improved at most levels and only worsened by 5 HERTZ at the 2000 level in the right ear.  As such, his hearing did not show any significant threshold shifts during his active service.

In July 2012, the Veteran was afforded a VA examination.  Audiological test results showed hearing loss for VA purposes.  After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's current bilateral hearing loss was less likely than not due to his active service.  The examiner reported that the Veteran had normal bilateral hearing at his entrance and separation examinations with no threshold shift.  The examiner noted that the Veteran reported noise exposure without the use of hearing protection during his active service and reported noise exposure after his separation from service with the use of hearing protection.

After a complete review of the evidence, the record contains no new competent medical or lay evidence dated after June 2004, beyond the Veteran's own assertions which are cumulative of those previously considered, to suggest that the Veteran's bilateral hearing loss was the result of military noise exposure.  

The Veteran was afforded a VA examination in July 2012.  After reviewing the Veteran's claim's file, interviewing the Veteran, and conducting an examination, the examiner found that his bilateral hearing loss was less likely than not due to his active service.  This opinion is uncontroverted by other competent evidence.  As such, the Veteran's claim to reopen his service-connection claim for bilateral hearing loss is denied.

The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described no new and material evidence has been added since the June 2004 rating decision.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Essentially, even if the Board reopened the claim, no duty to assist would be triggered, since the medical opinion that has been obtained was negative.

Accordingly, the claim to reopen the previously denied claim of service connection for bilateral hearing loss is denied.

ORDER

New and material evidence has not been presented, and the Veteran's claim for entitlement to service connection for bilateral hearing loss is not reopened.


REMAND

Regarding the Veteran's service connection claim for a headache disorder, the Veteran asserts that his headache disorder is secondary to his service-connected tinnitus.

The Veteran was afforded a VA examination in August 2012, prior to his tinnitus being granted service connection.  The examiner opined that the Veteran's headache disorder was less likely than not due to his active service as his tinnitus was not service connected.  In October 2012, the Veteran was subsequently granted service connection for tinnitus.  Therefore, an addendum is needed.

Regarding the Veteran's increased rating claim for his left great toe disability, he was last afforded a VA examination for his left great toe in May 2010.  Afterwards, he reported his left great toe disability had worsened.  As such, a new examination should be provided.

Accordingly, the case is REMANDED for the following action:

1.  Obtain a medical opinion to address the following question (if an opinion cannot be provided without an examination, one should be provided):

a.  Is it at least as likely as not (50 percent or greater) that any headache disorder was caused by a service connected disability (specifically the Veteran's service connected tinnitus)?  Why or why not?

b.  Is it at least as likely as not (50 percent or greater) that any headache disorder was aggravated (i.e. made worse) by a service connected disability to include tinnitus?  Why or why not?

If aggravation is found, the examiner should attempt to establish the baseline level of severity of the nonservice-connected disease or injury by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.

2.  Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left great toe disability.

In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the examination report include the results of the Veteran's active and passive motion, in addition to the results following repetitive motion testing.  If it is not possible to complete any of the range of motion testing described above, it should be explained why.  Failure to do so will result in an examination report being found inadequate.

3.  Then readjudicate the appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.

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).

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).




______________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs