Citation Nr: 1205690 Decision Date: 02/15/12 Archive Date: 02/23/12 DOCKET NO. 09-27 974A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence was received in order to reopen a claim for service connection for a thyroid disorder. 2. Entitlement to service connection for a thyroid disorder. 3. Service connection for tinnitus. 4. Service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge at an October 2011 hearing which was held at the RO. The issues of entitlement to service connection for a thyroid disorder and for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim for service connection for a thyroid problem, then noted as hyperthyroidism, was previously denied in a rating decision that was dated in August 1980. It was held that thyroid pathology was not shown in service, but first shown several years after service. The Veteran was notified of this decision and his appellate rights, but he did not perfect a timely appeal from this decision. 2. The evidence received since the August 1980 rating decision indicates that while the Veteran previously was denied service connection for hyperthyroidism, he now has developed a hypothyroid condition. 3. The credible evidence does not show that it is at least as likely as not that tinnitus was onset during, or was caused or aggravated by, service. CONCLUSIONS OF LAW 1. The RO's rating decision in August 1980 denying service connection for hyperthyroidism is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.302, 20.1103 (2011). 2. New and material evidence has been received to reopen the claim of service connection for a thyroid disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 3. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that, if a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought. The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter that satisfied these requirements in December 2007, prior to the rating decision which is at issue herein. The December 2007 letter explained VA's duty to assist the Veteran with obtaining evidence in support of his claim. It explained what the evidence needed to show in order to establish entitlement to service connection for a claimed disability and explained how VA assigns ratings and effective dates for service connected disabilities. It also informed the Veteran that his claim for service connection for a thyroid disorder had been previously denied and informed him of the reason for the prior denial as well as that he needed to submit new and material evidence in order to reopen this claim. In addition to its duties to provide the aforementioned notices to claimants, VA also must make reasonable efforts to assist the claimant with obtaining the evidence that is necessary in order to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record service treatment records, VA treatment records, private treatment records, and a transcript of the Veteran's testimony at the October 2011 hearing. There is no indication that additional evidence exists that is pertinent to the Veteran's claims which are decided herein. While an October 2007 audiology consultation references an audiogram that is not in the claims file, the note is otherwise complete and the audiogram itself is not relevant to any of his claims other than that of service connection for bilateral hearing loss which is remanded herein. For these reasons, the Board finds that VA satisfied its obligations pursuant to the VCAA in this case with respect to the claims which are decided herein. New and Material Evidence In an August 1980 rating decision, the RO denied service connection for the Veteran's hyperthyroidism (listed as a thyroid disorder) because while then current testing showed results consistent with hyperthyroidism no thyroid problems were shown in service. The evidence considered at that time included service treatment records and private treatment records. The Veteran did not timely file a notice of disagreement with this decision, which then became final. The Board must first ascertain in this case whether new and material evidence has been received. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established 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 this case, while the Veteran claimed service connection for a "thyroid condition," his former claim involved diagnosed hyperthyroidism while he now has hypothyroidism. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (a claim based on a new diagnosis is a new claim, and is adjudicated without regard to prior denials that did not consider that diagnosis); cf. Velez v. Shinseki, 23 Vet. App. 199 (2009) (in determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries). Thus, the Veteran's claim essentially amounts to a new claim, based on the newly diagnosed thyroid disorder. Thus, it is considered reopened. Service connection The Veteran contends that he has tinnitus that are related to his service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records are devoid of complaints of tinnitus. VA treatment records show complaints of hearing loss and ear pain but do not show complaints of tinnitus. The Veteran was afforded a VA audiological examination in April 2009. At that time, he specifically denied a history of, or a current complaint of, tinnitus. The VA examiner opined that tinnitus was not related to service since the Veteran denied experiencing tinnitus. At his hearing in October 2001, the Veteran testified that he had ringing in ears since service. He did not provide any specifics about the tinnitus, such as what the sounds were like or the frequency at which the tinnitus occurred. The Veteran's hearing testimony is not credible in light of his specific denial of a history of, or current symptoms, of tinnitus at the VA examination in April 2009. Moreover, the Veteran's denial of tinnitus at the April 2009 VA examination is consistent with his VA treatment records, which document complaints of ear pain and difficulty hearing but do not document complaints of tinnitus. There is no reason to believe that the Veteran would have specifically denied tinnitus at his VA examination if he in fact experienced this disorder. He endorsed tinnitus only at his hearing after his representative asked him whether he noticed ringing in his ears during service. Moreover, he provided no specifics about the alleged tinnitus at his hearing which is further evidence that this disorder is not, in fact, present. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, service connection for tinnitus is denied. ORDER New and material evidence having been received, the claim for service connection for a thyroid disorder is reopened. Service connection for tinnitus is denied. REMAND With respect to the Veteran's claim for service connection for a thyroid disorder, now diagnosed as hypothyroidism, the case must be remanded for the RO to conduct any needed development and to make an initial adjudication of the Veteran's claim on the merits. Specifically, an examination and etiology opinion should be undertaken. With regard to the Veteran's claim for service connection for hearing loss, VA treatment records reflect that the Veteran's hearing was tested in October 2007, within the same month that he filed his claim. The results of audiological testing were reported as right ear hearing sensitivity within normal limits from 250 Hertz to 3000 Hertz with mild sensorineural hearing loss from 4000 Hertz to 6000 Hertz, recovering back to normal at 8000 Hertz, and left ear mild sensorineural hearing loss from 250 Hertz to 1000 Hertz, rising to normal limits at 2000 Hertz, to a mild to moderate sloping hearing loss from 3000 to 6000 Hertz, rising back to normal at 8000 Hertz. However, the audiogram associated with this note is not in the claims file. It could be relevant insofar as it would show the actual decibel level of hearing loss at each of the tested thresholds. This could be significant as some hearing loss was diagnosed in October 2007 but the results of audiological testing at the April 2009 VA examination did not show hearing loss for VA purposes. Since the audiogram is a document that is within the possession of VA, it should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain a copy of the audiogram associated with the October 31, 2007 VA audiology consult and associate it with the claims file. If the audiogram cannot be obtained, then the efforts made to obtain it should be documented in the claims file and the Veteran should be notified of VA's inability to obtain the record. 2. Make arrangements for a VA examination of his thyroid disorder. All indicated tests should be accomplished and all clinical findings reported in detail. The claims folder should be made available to the examiner for review prior to the examination. The examiner should indicate whether it is more likely than not (50 percent or more) that any thyroid pathology is related to service. A medical basis for the conclusion should be set out. 3. After completion of the above development, the Veteran's claims should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental statement of the case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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 Supp. 2010). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs