92 Decision Citation: BVA 92-26081 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-46 971 ) DATE ) ) ) THE ISSUE Whether new and material evidence has been submitted to reopen a claim for an earlier effective date for a 40 percent evaluation for right eye aphakia, light perception only, with disfigurement. Whether new and material evidence has been submitted to reopen a claim for service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. N. Schwartz, Counsel INTRODUCTION The veteran served on active duty from July 1955 to May 1957. This matter came before the Board on appeal from rating decisions from the Boston, Massachusetts, Regional Office (hereinafter RO). In September 1990, it was determined that new and material evidence to reopen a claim for an earlier effective date had not been received. A notice of disagreement from the veteran's representative was dated November 7, 1990. A statement of the case was issued on April 18, 1991. A blank signed VA Form 1-9 was received on May 15, 1991. By rating decision of September 1991, it was determined that new and material evidence sufficient to reopen a claim for hearing loss had not been received. A notice of disagree- ment was received on October 18, 1991. The case was received at the Board on October 28, 1991, and docketed on November 1, 1991. The regional office, working with a temporary file, issued a statement of the case in regard to the hearing loss issue on November 7, 1991. A substantive appeal was received on November 20, 1991. The case was referred to the veteran's representative, Disabled American Veterans. That organization submitted additional written argument on March 23, 1992, and June 11, 1992. For reasons which will be outlined in the REMAND portion of this decision, the issue of whether new and material evidence has been received to reopen the claim for an earlier effective date will not be decided in this appeal. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has submitted a private medical document noting that the veteran's hearing loss may well be causally related to his inservice blast injury. It is argued that hearing loss could be due to an explosion; and that the VA has conceded that the veteran sustained noise trauma by granting service connection for tinnitus. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of the evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that new and material facts sufficient to warrant the reopening of the claim for service connection for hearing loss has been presented. FINDINGS OF FACT 1. In January 1986, the Board of Veterans' Appeals denied entitlement to service connection for defective hearing. 2. The codification of 38 C.F.R. § 3.385 (1991) is the functional equivalent of evidence which bears directly and substantially on the issue of entitlement to service connection for hearing loss, and provides a basis for reopening the claim. 3. Since the 1986 Board decision, the veteran has submitted a medical statement from L. M. Silverstein, M.D. The document is new, relevant and probative of the issue at hand. 4. Since the 1986 Board decision, the VA has conceded that the veteran was exposed to a blast explosion. (See Board of Veterans' Appeals decision dated June 1, 1990, page 6.) CONCLUSION OF LAW The decision of the Board in 1986 denying service connection for a hearing loss disability is final. New and material evidence sufficient to reopen a claim for service connection for hearing loss has been presented. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1991); Board of Veterans' Appeals: Rules of Practice, 57 Fed. Reg. 4126 (1992) (to be codified at 38 C.F.R. §§ 20.1100, 20.1105). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In 1986, the Board of Veterans' Appeals addressed and denied the issue of entitlement to service connection for a hearing loss disability. Based upon the evidence then of record, and the regulations then in effect, it was determined that service connection was not warranted. Under governing law and regulations, the prior decision of the Board is final, and the claim may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156; Board of Veterans' Appeals: Rules of Practice, 57 Fed. Reg. 4126. The issue before the Board is whether new and material evidence sufficient to reopen a claim for service connection for hearing loss has been presented. Manio v. Derwinski, 1 Vet.App. 140 (1991). Since the Board's determination, the appellant has petitioned to reopen his claim and has appealed to the Board. The law provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. In 1986, when the Board addressed the issue of entitlement to service connection for hearing loss, the decision was based primarily on the service medical records. The decision was also guided by Department of Veterans Affairs (VA) Manual M21-1, § 50.ll (January 3, l986), which declared: In consideration of service connection, hearing is within normal limits under ISO (ANSI) values when the speech reception threshold is less than 26 decibels and the discrimination score is higher than 92 percent and when the pure tone thresholds in the 250, 500, 1,000, 2,000, 4,000 hertz range are all less than 40 decibels with at least four of the frequencies at 25 decibels or less. However, the Code of Federal Regulations was amended to provide: Service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service connected when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are all less than 40 decibels; the threshold for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385 (April 3, 1990). It is clear that the regulation is intended to establish a binding agency-wide rule for making determinations of service connection for impaired hearing. It is also clear that the regulation is significantly different than the prior nonbinding guidelines. The United States Court of Veterans Appeals has held that factual predicate demonstrated by presumptions established by law or regulations have an important evidentiary value and, to that extent, are the functional equivalent of evidence and may provide a basis for reopening the claim. Akins v. Derwinski, 1 Vet.App. 228 (1991). We believe that the veteran's claim should be examined thoroughly in light of the language of the new regulation. The Board also notes that, since the 1986 Board decision, the Board, in another decision, conceded that the veteran had been exposed to a blast. Furthermore, a private examiner opined that the blast could certainly be strong enough to induce tinnitus and subsequent hearing loss. Cumulatively, there is new evidence and the functional equivalent of evidence which are relevant, probative of the issue at hand and sufficient to reopen the claim. ORDER The issue of entitlement to service connection for hearing loss is reopened. REMAND In light of the Board's decision that the claim for service connection is reopened, the Board believes that additional action is warranted. Furthermore, an opinion by a VA exam- iner would be helpful. See Littke v. Derwinski, 1 Vet.App. 90 (1990). Under the circumstances, additional action is required. Therefore, the case is REMANDED for the following: 1. The agency of original jurisdiction should schedule the appellant for an audiometric examination. 2. The agency of original jurisdiction should schedule the appellant for an examination to be conducted by a speci- alist in ear disorders. It is requested that the examiner review the claims file, including the facts that the veteran had been exposed to an explosion, that the VA has conceded service connection for tinnitus, that inservice audiometric examinations were normal and that a pri- vate doctor opined that remote hearing loss could be due to the inservice trauma. It is requested that the examiner render an opinion as to: (1) Whether acoustic trauma can result in hearing loss. (2) Whether acoustic trauma would result in an immediate hearing loss or a remote hearing loss. (3) Whether acoustic trauma could result in hearing loss long after an examination which had demonstrated normal auditory acuity (see audiogram dated November 15, 1956). The agency of original jurisdiction should then review the claim. Regardless of the determination upon completion of the above action, the case should be returned to the Board after compliance with all requisite appellate procedures for consideration of the other issue on appeal, currently held in abeyance pending completion of the above action. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 URSULA R. POWELL PAUL M. SELFON, M.D. * (Member temporarily absent) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 57 Fed. Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).