08-13 504

• Court: Board of Veterans' Appeals
• Decided: February 7, 2011
• Docket: 08-13 504
• Status: Unpublished

Opinion

Citation Nr: 1104829 Decision Date: 02/07/11 Archive Date: 02/14/11

DOCKET NO. 08-13 504 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUE

Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection is warranted.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. Connolly, Counsel

INTRODUCTION

The Veteran had active service from August 1978 to August 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2010, the Veteran testified before the undersigned at a Travel Board hearing.

The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1. In November 1979, the RO denied service connection for a hightone hearing loss. The Veteran did not appeal.

2. Evidence submitted since the RO's November 1979 decision includes new service department records dated in November 1978 pertaining to hearing loss.

CONCLUSIONS OF LAW

1. The RO's November 1979 rating decision which denied service connection for hightone hearing loss is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010).

2. New and material evidence has been received since the RO's November 1979 rating decision; thus, the claim of service connection for a bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(c) (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to the issue of whether new and material evidence has been received to reopen the claim of service connection for hearing loss, the Veteran's claim is being granted to the extent that it is reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial.

In November 1979, the RO denied service connection for a hightone hearing loss on the basis that the Veteran had hearing loss which preexisted service and was not aggravated therein. A notice of disagreement was not received within the subsequent one-year period. Therefore, the RO's November 1979 rating decision is final. 38 U.S.C.A. § 7105.

Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2010).

According to 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.

In this case, the Veteran has submitted copies of service treatment records including a November 1978 record which pertained to bilateral hearing loss. As a new service document (one not previously in the claims file) has been submitted, the claim must be reconsidered.

ORDER

The application to reopen the claim of service connection for bilateral hearing loss is granted.

REMAND

Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

At his personal hearing, the Veteran reported that he was exposed to loud tank engine and firing noises during service. He referenced his entrance examination in which hearing loss was shown, but did not disqualify him for service, and his discharge examination which he asserts showed worse hearing loss as a result of inservice noise exposure.

In light of these assertions, a VA medical opinion should be obtained. The examiner should determine if the Veteran's pre- service hearing loss underwent an increase during service and, if so, if the increase was due to the natural progress of the disease or was the increase in disability beyond the natural progress of the disease. The examiner should address and acknowledge the contentions of in-service noise exposure and should comment on the in-service audiological findings, including on the entrance and discharge examinations.

Accordingly, this matter is REMANDED for the following actions:

1. Schedule the Veteran for a VA ear examination. The examiner should review the claims folder in conjunction with the examination.

Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported.

The examiner should provide an opinion as to whether the Veteran's hearing loss, noted upon entrance examination in May 1977, was aggravated during his service. (Temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation in service.) If the Veteran's hearing loss did worsen during service, was any such worsening beyond the natural progression of the condition?

The examiner should address and acknowledge the contentions of in- service noise exposure and should comment on the inservice audiological findings, including on the entrance and discharge examinations. The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

2. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry.

3. Finally, readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.

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.A. §§ 5109B, 7112 (West 2002 & Supp. 2010).

______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs