Citation Nr: 0001155 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 97-09 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for hearing loss. REPRESENTATION Appellant represented by: James W. Stanley, private attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served honorably on active duty from August 1950 to August 1953. His decorations include the Army of Occupation Medal (Germany) and the National Defense Service Medal. This appeal arises before the Board of Veterans' Appeals (Board) from a November 1996 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO determined that new and material evidence had not been presented with regard to the claim for service connection for hearing loss. In a decision dated May 28, 1998, the Board determined that new and material evidence had not been presented to reopen a claim for service connection for hearing loss. The veteran appealed the Board's decision to the United States Court of Veterans Appeals (hereinafter "the Court"). In March 1999, the Court vacated the Board's May 1998 decision, and a Motion for Remand was granted. This case was thereafter returned to the Board for readjudication in accordance with the terms of the motion for remand, to include consideration of the holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), in which the test for new and material evidence formulated by the Court in Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) was overturned by the Federal Circuit and it was held that the regulatory definition of new and material evidence, as contained in 38 C.F.R. §3.156(a) (1999), is controlling. FINDINGS OF FACT 1. In a June 1993 rating decision, the RO denied service connection for hearing loss. As an appeal of that adverse decision was not initiated within one year following notification of thereof, the June 1993 rating decision became final. 2. The additional evidence submitted since the RO's June 1993 decision includes a statement from a private physician who believes that it is highly probable that in-service noise exposure contributed to the veteran's currently manifested sensorineural hearing loss. 3. The record demonstrates the current manifestation of a hearing loss disability and the veteran has submitted a medical opinion from a private physician which relates this disability to the period of service and to acoustic trauma and exposure to noise therein. CONCLUSIONS OF LAW 1. The additional documentation received since the June 1993 RO decision constitutes new and material evidence which is sufficient to reopen the veteran's claim for service connection for hearing loss, and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. The reopened claim for service connection for hearing loss is well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence Prior RO Decision In June 1993, the RO denied service connection for hearing loss. The RO determined that there was no evidence of hearing loss during service or within one year of discharge. In making its June 1993 decision, the RO was unable to consider the veteran's service medical records due to destruction by fire at the NPRC in 1973. The RO also attempted to obtain SGO records, the morning reports from the veteran's battery, and outpatient treatment records from the VA Hospital in Los Angeles, California. However, all of these efforts failed to uncover any service treatment records for the veteran. Although the veteran was asked to provide any records in his own possession which showed hearing loss during service or within one year of discharge, no such records were submitted. The report of a December 1992 VA audiological examination was of record at the time of the June 1993 rating decision. This report shows an assessment of mild sloping to moderate sensorineural hearing loss bilaterally. It was noted that the veteran reported a constant high pitched tinnitus in his left ear and periodic high pitched tinnitus in his right. He attributed this tinnitus to noise exposure suffered while in the military. At the time of his general medical examination, the veteran stated that he has difficulty understanding words in his left ear and he complained of ear infections in the past. In a February 1993 statement, the veteran indicated that while he was stationed at Fort Sill and in Germany, his doctors only cleaned his ears and never treated him with any kind of medication. He stated that he complained many times but he was never given any medical treatment for his ears while he was in service. Following the RO's June 1993 decision, the veteran did not initiate an appeal within one year following notification thereof. New and Material Evidence Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999), 38 C.F.R. § 20.1103 (1999). However, 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 (West 1991). During the course of the veteran's appeal with regard to the instant claim, the United States Court of Appeals for the Federal Circuit rendered its decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the Federal Circuit changed the law as it pertains to the submission of new and material evidence and offered guidance as to how the Court should review such determinations made by the Board. First, the Federal Circuit invalidated the test adopted by the Court in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), i.e., that evidence was new and material sufficiently to reopen a claim if the evidence, when considered with the other evidence, would raise a reasonable possibility of changing the outcome. The Federal Circuit proceeded to adopt the standard set forth in 38 C.F.R. § 3.156(a) (1999) as the appropriate standard for determining whether new and material evidence had been submitted. Second, as a result of Hodge and the Federal Circuit's recitation that the determination of whether new evidence is sufficiently material is a "fact-specific determination," "a deferential standard of review of these decisions under 38 U.S.C. § 7261(a) becomes the proper one." Fossie v. West, 12 Vet. App. 1 (1998). In recent decisions and in light of the holding in Hodge, the U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as "Court") has set forth a three- step analysis which must be applied when a veteran seeks to reopen a final decision based on new and material evidence. See Hodge, supra; Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. The Court has also held that in order to reopen a claim, there must be new and material evidence presented or secured "since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." Evans v. Brown, 9 Vet. App. 273, 285 (1996). Accordingly, the Board must consider whether new and material evidence has been received since the RO's June 1993 decision. Analysis As noted, the first step in the three-step analysis for new and material evidence claims is to determine whether new and material evidence has been presented under 38 C.F.R. § 3.156 (1999). According to 38 C.F.R. § 3.156(a) (1999), "New and material evidence" means evidence not previously submitted to agency decision makers 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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. The relevant evidence received by VA since June 1993 consists of statements by the veteran on appeal, including his sworn testimony at a personal hearing, outpatient treatment reports, and the reports of a VA examination conducted in August 1997. In a June 1996 statement, the veteran indicated that during his active service, he helped to train Korean officers and they would fire 720 rounds a day for weeks at a time. The veteran reported that he had problems with his hearing during service, and he thought that his ears would clear up but they never did. At a personal hearing in October 1996, he testified that was exposed to noise from shooting 1500 rounds a day for periods of two, three, or four weeks at a time over a period of a year and a half, in conjunction with his duties as a gunner in Howitzer outfits. He testified that he did not use any ear protection during that time. The veteran testified that after his discharge, he went to many doctors for treatment of his hearing problems, and that he was treated within one year following his discharge. He recalled post-service treatment for his ears at Kaiser Hospital in Los Angeles, and he indicated that for about three months after his discharge, he worked in a foundry where they were compelled to wear ear plugs as it was pretty loud. At the time of an April 1997 personal hearing, the veteran testified that he did not have any hearing problems prior to entering service and he reiterated much of his previous testimony and statements regarding his noise exposure during service. He stated that he first sought VA treatment for his hearing in approximately 1990, and when he was evaluated at the Memphis VA Hospital. The veteran stated that he had a hard time in service as it was segregated, and people wouldn't listen to what he was saying. As he was uneducated, he didn't know what to do about it, and that is why he didn't go to a VA hospital until 1990. He further testified that he had attempted to obtain treatment records from the private doctors who treated him right after his discharge, but they had all moved or were dead. On VA audiological examination in August 1997, the veteran reported a long history (over 20 years) of fluctuating hearing in the left ear. Objective examination revealed an assessment of right ear hearing within normal limits through 1000 Hz, with sloping to moderately severe sensorineural hearing loss at 8000 Hz. In the left ear, he was assessed with moderate to moderately severe sensorineural hearing loss. In October 1997, the veteran was given a hearing aid orientation The record now includes a statement, dated November 1999, in which William C. Young, M.D., indicates that an audiogram was initially performed on the veteran in October 1998, at which time he was found to have a significant sensorineural hearing loss in both ears and more severe in the left ear. Dr. Young stated that while in the military, the veteran was exposed to significant noise from sources including cannons, large caliber guns, and jet engines. It was Dr. Young's feeling that it is highly probable that his noise exposure in the military contributed to his current sensorineural hearing loss. In the Board's view, the additional evidence in the form of a medical statement to the effect that the veteran's current hearing loss is related to in-service exposure to noise from cannons, guns, and jet engines constitutes evidence which is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for hearing loss. As such, the Board finds that the additional evidence submitted by the veteran since the June 1993 RO decision is new and material evidence under 38 C.F.R. § 3.156 and therefore, the claim is reopened. II. Well groundedness of claim for service connection for hearing loss Having reopened the veteran's claim for service connection for hearing loss, the Board must now consider the claim on a de novo basis, to initially include a determination as to whether the claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). Elkins, supra. Only after a determination that the claim is well grounded may VA proceed to evaluate the merits of the claim, provided that VA's duty to assist the veteran with the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991) has been fulfilled. See Winters, supra; see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that the claim is well grounded, that is, that each claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability as provided by a medical diagnosis, (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). The record demonstrates the current manifestation of the claimed disability and there is an opinion from a private physician which relates the current disability to the period of service and to acoustic trauma and exposure to noise therein. For these reasons, the Board finds that the requirements for a well grounded claim have been satisfied. ORDER As new and material evidence has not been presented, the claim for service connection for hearing loss is reopened, and the reopened claim is well grounded. REMAND Having found the reopened claim for service connection for hearing loss to be well grounded, VA has a duty to assist the veteran in the development of facts which are pertinent to thereto. Littke v. Derwinski, 1 Vet.App. 90 (1990). On review of the record, the Board has determined that further evidentiary development is required prior to the adjudication of this claim on its merits, in light of the duty to assist as well as the heightened obligation to carefully explain findings and conclusions due to the unavailability of the service medical records. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). The record indicates that in various statements in support of his claim, the veteran has indicated that he received treatment for hearing problems in the years shortly following his discharge, and he has specifically referred to treatment at a Kaiser Hospital in the vicinity of Los Angeles, California, in the 1950's. On remand, the RO will have the opportunity to conduct further evidentiary development regarding treatment for hearing problems in the post-service period between 1953 and the veteran's initial VA treatment in 1990. Accordingly, this claim is REMANDED for the following actions: 1. The RO should contact the veteran and ask that he provide information regarding the dates and location for any and all treatment he received for hearing problems or hearing impairment in the years following his discharge from active duty and in the interim period between 1953 and 1990. The veteran should be notified that evidence showing continuity of treatment for a hearing problem during that period would be helpful to his claim, and that such evidence might include outpatient treatment reports, employment examinations, or any other documentation regarding audiological evaluations or treatment for hearing loss. The veteran should attempt to be as specific as possible by providing the RO with addresses for all named caregivers and facilities, if possible. Utilizing the information provided by the veteran, the RO should contact all named sources in order to request copies of treatment records for the veteran. In particular, the RO should request records for the veteran from Kaiser Hospital facility in either Harbor City or Englewood, in the vicinity of Los Angeles, California, for the specified period of time. All documentation generated during the course of this evidentiary development should be associated with the claims folder, to include negative responses or notification of undeliverable correspondence. 2. Thereafter, the RO should review the claims folder in order to ensure that the specified evidentiary development has been completed to the extent possible. If any development remains incomplete, appropriate corrective measures should be taken. 3. Upon finding that the required development has been completed to the fullest extent possible, the RO should review the appellant's claim based on all of the evidence which is now of record, in order to determine whether a favorable outcome is now warranted. If the decision remains adverse, the RO should provide the appellant and his representative with a Supplemental Statement of the Case, along with an adequate period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further action, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. The purpose of this REMAND is to conduct further development and to ensure compliance with due process considerations. The Board intimates no opinion as to the ultimate outcome of the claims on appeal. C. P. RUSSELL Member, Board of Veterans' Appeals