Citation Nr: 0000951 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-11 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of left ear trauma, and, if so, whether service connection is warranted for this condition. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss, and, if so, whether service connection is warranted for this condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from January 1953 to December 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the above claims. In October 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). The issue of entitlement to service connection for bilateral hearing loss is the subject of the REMAND herein. FINDINGS OF FACT 1. In a November 1993 rating decision, the RO denied, on the merits, the appellant's claims for service connection for residuals of left ear trauma and bilateral hearing loss. The appellant was notified of that decision in December 1993 and did not appeal. 2. None of the evidence received since 1993 in support of the appellant's attempt to reopen his claim for service connection for residuals of left ear trauma is material. 3. Some of the evidence received since 1993 in support of the appellant's attempt to reopen his claim for service connection for bilateral hearing loss is material. 4. The appellant's claim for service connection for bilateral hearing loss is plausible, but the RO has not obtained sufficient evidence for correct disposition of this claim. CONCLUSIONS OF LAW 1. The November 1993 rating decision that denied service connection for residuals of left ear trauma and bilateral hearing loss is final. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. § 3.160(d) (1999). 2. New and material evidence not having been received, the appellant's claim for service connection for residuals of left ear trauma is not reopened. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. New and material evidence has been received, and the appellant's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 4. The claim for service connection for bilateral hearing loss is well grounded, but VA has not satisfied its statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant initially filed claims for service connection for residuals of left ear trauma and bilateral hearing loss in June 1993. He alleged that he had fallen down a ladder during service, and his left ear was "damaged" and had to be "reattached." He also stated that he was exposed to acoustic trauma during service from engine noise and weapons fire. His service medical records showed no complaints of or treatment for either condition. He submitted evidence from Paul Pettit, M.D., at the Shea Clinic, which showed diagnoses of congenital and noise induced hearing loss. VA examination in August 1993 yielded a diagnosis of bilateral sensorineural hearing loss, idiopathic in origin, but not related to specific trauma or secondary to noise exposure. A November 1993 rating decision denied these claims. A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the veteran is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. The appellant has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if a NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d) and 20.302(a) (1999). A letter from the RO, advising the appellant of the November 1993 decision and of appellate rights and procedures, was issued in December 1993. The appellant did not disagree with that decision; therefore, it is final. 38 U.S.C.A. § 7105 (West 1991). In August 1997, the appellant requested that his claims be reopened. In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial. Rather, it is important that there be a complete record upon which the claim can be evaluated, and some new evidence may contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. Hodge, 155 F.3d at 1363. When presented with a claim to reopen a previously finally denied claim, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) based upon all the evidence and presuming its credibility. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the reopened claim is well grounded, VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In the rating decision on appeal, the RO adjudicated this issue according to the definition of material evidence enunciated in Colvin v. Derwinski, 1 Vet. App. 171 (1991) ("a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the final decision). The Federal Circuit in Hodge declared this definition of material evidence invalid. Therefore, the determination as to whether the appellant has submitted new and material evidence to reopen this claim will be made pursuant to the definition of new and material evidence contained in 38 C.F.R. § 3.156(a), as discussed above. It is not necessary to remand this claim because no prejudice to the appellant results from the Board's consideration of this claim. He was provided notice of the applicable laws and regulations regarding new and material evidence, including 38 C.F.R. § 3.156. See Bernard v. Brown, 4 Vet. App. 384 (1993). Furthermore, the Board's review of this claim under the more flexible Hodge standard accords the appellant a less stringent "new and material" evidence threshold to overcome. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). The evidence received subsequent to November 1993 is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Since November 1993, the following evidence has been received: (1) the appellant's contentions, including those raised at a personal hearing in October 1999; and (2) a letter from W. Michael Hall, M.D. The appellant requested reopening of these claims based on new records at the National Personnel Records Center (NPRC). The RO requested additional records for the appellant from NPRC, but that facility indicated that none were found. The appellant again submitted statements concerning the trauma to his left ear during service and his exposure to noise during service. He argued that perhaps NPRC had lost his treatment records in the fire at that facility in 1973. A letter from Dr. Hall dated in June 1998 indicated that the appellant's hearing loss was probably related to "noise, engine, and gun noise exposure." The letter discussed the appellant's reported history of noise exposure during his military service. To the extent that the appellant contends that he has residuals of left ear trauma as a result of an inservice injury and bilateral hearing loss as a result of acoustic trauma during service, this evidence is not new. Prior to 1993, he had submitted detailed statements concerning the alleged left ear injury and noise exposure during service. He has not submitted any new contentions regarding these conditions; he has merely, at best, repeated his prior assertions. This evidence is cumulative of evidence associated with the claims file at the time of the November 1993 rating decision and is not new for purposes of reopening a claim. The letter from Dr. Hall is new in that it was not previously of record. It is necessary, therefore, to decide if this evidence is material. To be material, it must be (a) relevant in that it bears directly and substantially on the matter under consideration, and (b) so significant, either by itself or with other evidenc, that it must be considered in order to fairly decide the claim. 38 C.F.R. § 3.156(a) (1999). The Board concludes that the appellant has not submitted material evidence concerning his claim for service connection for residuals of left ear trauma. The letter from Dr. Hall did not reference a prior injury to the left ear, nor identify the current presence of any left ear disorder other than hearing loss. Dr. Hall's letter, which is the only new evidence submitted since 1993, is therefore not relevant to this claim. None of the evidence of record shows a conclusion by a medical professional that the appellant has residuals of the alleged left ear trauma. The appellant testified that he was told at the Shea Clinic that he had scar tissue in the left ear and/or the left cochlea was damaged, possibly due to trauma. No such opinion is contained in the records from the Shea Clinic. The appellant's contentions that he has residuals of the alleged left ear trauma are neither material nor competent evidence. There is no evidence that he possesses the requisite medical knowledge to render a probative opinion on a matter requiring medical expertise. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board finds that the evidence received subsequent to November 1993 is not new and material and does not serve to reopen the appellant's claim for service connection for residuals of left ear trauma. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). However, the Board concludes that the appellant has submitted material evidence concerning his claim for service connection for bilateral hearing loss. The letter from Dr. Hall included a professional opinion as to the etiology of the appellant's current hearing loss and suggested a relationship to the appellant's military service. This evidence bears directly and substantially on the specific matter under consideration (i.e., entitlement to direct service connection), and it is sufficiently significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). Accordingly, the Board concludes that this evidence is new and material evidence, and the claim for service connection for bilateral hearing loss must be reopened. The appellant's reopened claim is also well grounded. See Elkins. The appellant testified as to exposure to noise during service, and his statements are presumed true for the purpose of determining whether a well-grounded claim has been submitted. VA examinations in 1993 demonstrated that he has bilateral hearing loss disability, as shown by auditory thresholds of 40 decibels or greater in both ears. See 38 C.F.R. § 3.385 (1999). There are medical opinions indicating that it is possible that the appellant's hearing loss is, at least in part, related to the reported inservice noise exposure. Although the appellant's service medical records do not show complaints of or treatment for hearing loss, VA regulations do not preclude service connection for hearing loss that is first manifested after service if the evidence establishes that it is the result of an injury or disease incurred in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Assuming the credibility of this evidence, it is sufficient to create the plausibility of a valid claim. However, the Board concludes that this is not the type of well-grounded claim that is meritorious on its own, but rather one that may be capable of substantiation with further development of the medical evidence on remand. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990) (a well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation). The appellant having presented a well-grounded claim, the Department has a duty to assist in the development of facts relating to the claim. 38 U.S.C.A. §§ 5103 and 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The Board concludes that VA has not satisfied its duty to assist the appellant in the development of his hearing loss claim. The record does not contain sufficient evidence to decide his claim fairly. Accordingly, further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. §§ 5103 and 5107(a), and the hearing loss claim is REMANDED for the development discussed below. ORDER As new and material evidence has not been received to reopen the appellant's claim for service connection for residuals of left ear trauma, the claim is not reopened, and the appeal is denied. As new and material evidence has been received to reopen the appellant's claim for service connection for bilateral hearing loss, the claim is reopened, and, to that extent, the appeal is granted. REMAND Additional evidentiary development is needed prior to further disposition of the appellant's claim for service connection for bilateral hearing loss. The appellant testified that the first post-service treatment for decreased hearing acuity was at the Shea Clinic in 1972 or 1973. Dr. Hall's letter indicated that the appellant was first provided a hearing aid in 1970 from the Shea Clinic. The earliest records from the Shea Clinic associated with the claims file are dated in 1979. Any earlier treatment records would be relevant to the appellant's claim for service connection. The appellant should be informed of the need to obtain any additional treatment records, since it is his ultimate responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c) (1999). See also 38 U.S.C.A. § 5103(a) (West 1991). It is unclear from the record whether the appellant has received treatment at a VA medical facility for his hearing loss. The letter from Dr. Hall referenced VA testing in 1970, but the appellant's testimony suggested that his only visit to a VA facility was for his examination in 1993. The RO should ask the appellant to clarify whether he has received outpatient treatment at a VA medical facility for his hearing loss, and, if so, those records must be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The medical rationale for Dr. Hall's opinion was not indicated, and it is clear from the appellant's testimony that Dr. Hall has never examined the appellant's ears. The appellant should be informed of the necessity of obtaining the medical rationale for Dr. Hall's opinion. Again, he is advised that it is his ultimate responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c) (1999). See also 38 U.S.C.A. § 5103(a) (West 1991). It is necessary to obtain a medical opinion as to the etiology of the appellant's hearing loss because the medical evidence of record is contradictory. The Shea Clinic concluded that the appellant's hearing loss was partly congenital in origin, and the VA examiner in 1993 concluded that it was idiopathic (unknown) in origin. Other medical professionals have concluded that the appellant's hearing loss is noise related. It is necessary that a medical professional review the claims file, including the other medical opinions, and provide an opinion as to the likelihood that the appellant's current hearing loss is related to his military service, including the alleged acoustic trauma. A medical opinion is needed, since there is not sufficient evidence upon which the Board can decide the appellant's claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Santiago v. Brown, 5 Vet. App. 288, 292 (1993). Accordingly, although the Board regrets the delay, the appellant's hearing loss claim is REMANDED for the following: 1. The RO should ask the appellant to submit the following evidence: (a) his actual treatment records from the Shea Clinic for any treatment prior to 1979; (b) his actual treatment records from Dr. Hall for any treatment for hearing loss; and (c) a statement from Dr. Hall as to the medical rationale for his opinion that the appellant's hearing loss is probably related to engine and gun noise exposure, including the exact basis of such opinion (i.e., what records were reviewed in reaching this conclusion) and a statement as to whether Dr. Hall has ever examined the appellant's ears and/or hearing acuity. The RO should provide the appellant an opportunity to obtain this evidence and submit it in keeping with his ultimate responsibility to furnish evidence in support of his claim, and notify him of the time limit within which he is requested to provide the evidence. 38 C.F.R. § 3.159(c) (1999). If necessary, the RO should assist the appellant in obtaining this information. 2. Ask the appellant to clarify whether he has ever received outpatient treatment at a VA medical facility for his hearing loss, and, if so, to list those facilities and the dates of treatment. If the appellant has received VA treatment, obtain and associate with the claims file all referenced medical records. 3. After obtaining as many of the above records as possible and/or allowing the appellant an opportunity to submit the requested evidence, send the claims folder to a VA specialist with expertise in the diagnosis and treatment of audiological disorders, to include hearing loss. If the examiner determines that another examination is necessary prior to rendering the requested opinion, schedule the appellant for such an examination. The examiner should indicate in the report that the claims file was reviewed. The examiner is asked to render an opinion as to whether it is as likely as not that the appellant's hearing loss as shown by VA testing in 1993 is related to a disease or injury incurred during service, including the reported acoustic trauma. The examiner is also asked to reconcile any contradictory medical evidence of record (i.e., medical opinions indicating that the hearing loss is idiopathic or congenital in origin). The medical rationale for all opinions expressed must be provided. 4. Review the claims folder and ensure that all of the above development actions have been conducted and completed in full. Ensure that the examination report includes fully detailed descriptions of all opinions requested. If it does not, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 5. After completion of the above evidentiary development, readjudicate the appellant's claim for service connection for bilateral hearing loss (on the merits) with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand. If the benefit sought on appeal remains denied, provide the appellant and his representative a supplemental statement of the case, and allow an appropriate period for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals