Citation Nr: 20021522 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-44 223 DATE: March 26, 2020 ORDER As new and material evidence to reopen the claim of entitlement to service connection for bilateral hearing loss has been received, to this limited extent, the appeal is granted. REMANDED The claim of entitlement to service connection for bilateral hearing loss, on the merits, is remanded. FINDINGS OF FACT 1. In a January 2011 rating decision, the agency of original jurisdiction (AOJ) denied service connection for bilateral hearing loss; although notified of the denial in a letter also dated in January 2011, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. New evidence associated with the claims file since the January 2011 rating decision relates to unestablished facts necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating that claiml. CONCLUSIONS OF LAW 1. The January 2011 rating decision, in which the AOJ denied service connection claims for bilateral hearing loss, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. As additional evidence received since the January 2011 rating decision, pertinent to the claim of entitlement to service connection for bilateral hearing loss is new and material, the criteria for reopening the claim are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1962 to December 1966, including service in the Republic of Vietnam. This appeal before the Board of Veterans’ Appeals (Board) arose from a March 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia, inter alia, confirmed and continued the previous denial of the Veteran’s claim of entitlement to service connection for bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in March 2015, the RO issued a statement of the case (SOC) in August 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) also in August 2016. The record reflects that the Veteran was scheduled to appear for a Board hearing in August 2019. Information contained in the Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran indicated his intention to withdraw this service connection claim rather than appear for the Board hearing, and that he would file a statement formalizing his withdrawal. A statement from the Veteran to withdraw his claim has not been received; thus, his claim remains on appeal before the Board. See 38 C.F.R. § 19.55. His hearing request is deemed withdrawn. See 38 C.F.R. § 20.603(e). Regarding characterization of the appeal, it is noted that, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received—and, in view of the Board’s favorable decision on the request to reopen, as explained below—the Board has characterized the appeal as now encompassing both a request to reopen, and the underlying claim for service connection, on the merits. Request to Reopen Under legal authority in effect at the time of the prior January 2011 denial of the service connection claim for bilateral hearing loss, and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In the January 2011 rating decision, the AOJ denied the Veteran’s service connection claim for bilateral hearing loss based on a lack of evidence that current hearing loss was medically linked to his active service. Relevant evidence of record at the time of the January 2011 rating decision consisted of the Veteran’s service treatment records (STRs), and a January 2011 VA examination report. Although notified of the January 2011 decision in a letter from the AOJ dated that same month, the Veteran did not appeal the denial of his claim. See 38 C.F.R. §§ 20.200, 20.201 (2012). Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of denial, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the January 2011 decision is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.52, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Id. New evidence pertinent to the service connection claim for bilateral hearing loss includes VA treatment records, noting the Veteran’s worsening bilateral hearing loss and reflecting his need for hearing aids; a January 2015 VA examination report, reflecting an apparent significant threshold decline in the Veteran’s hearing acuity; and the Veteran’s written statements indicating that his hearing loss was incurred in service. The Board finds that the above-described evidence is “new” in that it was not previously before decision makers, and is not cumulative or duplicative of evidence previously of record. Additionally, in light of new VA and Board policy with respect to the interpreting of audiometric testing results from service department audiograms conducted prior to December 31, 1970, the evidence is also “material” in that it is relevant to the bilateral hearing loss claim. Specifically, the new evidence reflects continually degrading hearing acuity, and continuing symptoms since the Veteran was first determined to have hearing loss for VA purposes. Together with evidence previously of record, the new evidence constitutes pertinent evidence to the assertion that the Veteran’s hearing loss began during active service, and hereby tending to abrogate the prior deficiency with respect to the lack of a medical nexus between the Veteran’s current hearing loss and his active service. Given the “low threshold” standard of Shade, the evidence thus provides a reasonable possibility of substantiating the claim. As such, the Board finds that the additionally received evidenc, since the January 2011 rating decisio, is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claims for bilateral hearing loss. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the reopened claim, prior to appellate consideration, is warranted. The Veteran was afforded VA examinations for his claimed bilateral hearing loss in January 2011 and January 2015. Although the Veteran has been found to have bilateral hearing loss for VA purposes, and was noted to have been exposed to hazardous military noise, including from machine guns, artillery fire, and grenades, during his service in Vietnam, the examiners provided negative etiology opinions with respect to the relationship between the Veteran’s hearing loss and his in-service noise exposure. See 38 C.F.R. § 3.385. Notably, however, in providing the negative etiology opinions, both examiners relied on the apparent finding that the Veteran had normal hearing thresholds at the time of his November 1966 separation examination. Based on review of the Veteran’s November 1966 separation examination, and on the presumed use of outdated standards used to evaluate hearing acuity at the time of his separation examination, the Board finds that the examiners have relied on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Initially, the Board observes that, as originally noted, the November 1966 separation examination revealed that the Veteran had (+)15 decibels of hearing loss at the 3000 Hertz (Hz) frequency. Thus, in contrast to the VA examiner findings, the examination revealed some loss of hearing acuity at that frequency. Additionally, in accordance with VA policy, if a military audiogram was performed prior to 1969 and does not specifically state it was conducted according to International Standards Organization (ISO)/American National Standards Institute (ANSI) standards, adjudicators are to assume that the results are in American Standards Association (ASA) units. In order to facilitate data comparison for VA purposes, under 38 C.F.R. § 3.385, ASA standards noted in STRs dated prior to 1969 must be converted to ISO/ANSI standards. See M21-1, Part III, Subpart iv, 4.D.2.c. Further, Board’s new policy is to now consider audiometric data dated prior to December 31, 1970, using either ISO-ANSI or ASA units, whichever is more favorable to a claimant, unless the audiogram clearly indicates which standard was used. The conversion from ASA to ISO-ANSI units is accomplished by adding 15 decibels at 500 Hertz (Hz), 10 decibels at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 decibels at 4000 Hz. Here, the Veteran’s November 1966 separation examination does not state whether the audiometric testing results were recorded in ASA or ISO-ANSI units. Thus, presuming that ASA units were used, conversion of his audiometric testing results to ISO-ANSI, reveals that follow results, with the ISO-ANSI standards in the adjoining parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -5 (5) 15 (25) -10 (-5) LEFT -10 (5) -10 (0) -10 (0) -5 (5) -10 (-5) Based on the above, the conversion of his audiometric testing results from his November 1966 separation examination to ISO-ANSI units is more favorable to the Veteran. The results reflect that the Veteran had additional loss of hearing acuity at the 500 Hz and 3000 Hz frequencies, bilaterally, and at the 2000 Hz frequency in the right ear. Additionally, the Veteran did demonstrate some degree of hearing loss at the 3000 Hz frequency in the right ear, although not sufficient to constitute a disability for VA purposes. Cf. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (noting that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss); 38 C.F.R. § 3.385. Accordingly, inasmuch as the VA examiners incorrectly relied on a determination that the Veteran had normal hearing at separation, in providing the negative etiology opinions, the medical evidence currently of record is insufficient to resolve the service connection claim. See Reonal, 5 Vet. App. at 461. Accordingly, remand of this claim is warranted to afford the Veteran a new VA examination to determine the nature and etiology of present hearing loss. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to obtain an opinion when developing a service connection claim, even if not statutorily obligated to do so, it must obtain one that is adequate for purposes of the determination being made). Prior to scheduling the Veteran for new VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through March 2019. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since March 2019. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the service connection claim on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § § 5103(b)(1); but see also 38 U.S.C. § § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the service connection claim on appeal, on the merits. This matter is hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since March 2019. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the service connection claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide a claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA audiology examination by an audiologist or Ear, Nose and Throat (ENT) physician. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All necessary tests and studies (to include audiometric and speech discrimination testing (Maryland CNC), should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For the Veteran’s bilateral hearing loss, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically related to service—to specifically include as a result of hazardous noise exposure due to machine guns, artillery fire, and grenades, during his Vietnam service. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include the Veteran’s competent assertions as to in-service hazardous noise exposure and as to the onset and continuity of symptoms of diminished hearing. In rendering the requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence. The clinician must specifically comment on the significance of the audiometric testing results noted in the Veteran’s November 1966 separation examination report, to include loss of hearing acuity at multiple frequencies and noted hearing loss at the 3000 Hz frequency in the right ear. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted adjudicate the service connection claim, on the merits, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.