Citation Nr: 1421934 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 11-02 790A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. FINDINGS OF FACT 1. In an unappealed August 1990 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss disability; the RO denied a claim to reopen in February 2000. 2. In an unappealed January 2002 rating decision, the RO denied the Veteran's claim to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss disability. 3. Some of the evidence received since the January 2002 RO decision is new; however, none of it is material because it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability. CONCLUSION OF LAW Evidence received since the January 2002 RO decision which denied entitlement to service connection for bilateral hearing loss disability, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim 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 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Kent v. Nicholson, 20 Vet. App. 1 (2006). Notice was provided in February 2010. VA has a duty to assist the appellant in the development of the claims. The claims file includes service personnel records, service treatment records (STRs), post service clinical records, and the statements of the Veteran and her spouse in support of the claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. In a March 2014 brief, the Veteran's representative contends that the Veteran should be scheduled for a VA examination based on her contention that her hearing has become worse since June 2010 audiology testing. The Board acknowledges that the Veteran is competent to state that her hearing has worsened; however, the issue on appeal is not with regard to a disability evaluation. VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection in General Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service connection for Hearing Loss Disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). New and Material Evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C.A. § 5108, which 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. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically in August 1990, the RO denied the Veteran's claim for service connection for bilateral hearing loss disability. The RO again denied her claim on a de novo basis in February 2000 because her claim was not well grounded. The RO noted that a VA examiner found that it was not likely that the Veteran's military noise exposure contributed significantly to her hearing loss. The Veteran initially appealed the decision, but later withdrew her appeal in April 2001. In 2002, the RO denied the Veteran's claim to reopen because no new and material evidence had been received. The RO noted that none of the evidence showed that the Veteran met the criteria for a grant of service connection for defective hearing under 38 C.F.R. § 3.385. Evidence of record at time of last final denial in 2002 At the time of the last final denial in 2002, the claims file included STRs, post service medical records, service personnel records, and the statements of the Veteran and her spouse. The Veteran's STRs reflect several audiology reports. A May 1980 audiology examination for entrance purposes reflects that the Veteran's hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 10 15 LEFT 25 10 5 10 15 Thus, the entrance examination reflects preexisting abnormal hearing in the left ear. A DD Form 2215 (Reference Audiogram) reflects the following results for July 1982: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 10 15 5 LEFT 20 15 5 15 5 The July 1982 form also reflects that the Veteran had been previously issued single flange personal hearing protection (earplugs) in size small for both ears. A DD Form 2216 (Hearing Conservation Data) reflects the following results for March 1983: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 10 5 10 LEFT 25 20 10 10 10 The DD Form 2216 reflects that there was no significant threshold shift (STS) of 20 dB or greater. A post service June 1999 audiology report is in graph form and did not reflect precise results sufficient for a finding of bilateral hearing loss disability under 38 C.F.R. § 3.385. A January 2000 audiology report reflects that the Veteran's hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 20 20 LEFT 25 25 20 20 20 A February 2000 VA examination report reflects the opinion of the examiner that it is not likely that the Veteran's military noise exposure contributed significantly to her mild hearing loss. A December 2000 audiology report is in graph form and did not reflect precise results sufficient for a finding of bilateral hearing loss disability under 38 C.F.R. § 3.385. The report reflects that the Veteran reported a gradual decrease in bilateral hearing after excessive noise exposure in the service. The clinical assessment was mild sensorineural hearing loss in the right ear as likely as not due to noise exposure in service, and hearing within normal limits in the left ear. (See reverse of VA Form 10-2364a) A February 2001 VA examination report reflects that the Veteran's hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 20 25 20 LEFT 15 25 15 20 15 A February/March 2001 VA opinion reflects the opinion of the examiner that the Veteran had bilateral hearing within normal limits; "however threshold are worse than when the [Veteran] entered the service most likely due to excessive noise exposure." The claims file included an August 2000 statement from the Veteran's spouse that he met the Veteran while she was in service and "since her discharge and up until recently [he] noticed that her hearing has decreased over the last 18 years." The claims file included statements from the Veteran that she was trained/qualified and consistently operated different vehicles and traveled long distances in a 2 1/2 ton truck without the benefit of hearing protection. (See January 2001 VA Form 9.) It also includes copies of DA Forms 348 (Equipment Operator's Qualification Record). Evidence since the last final denial A June 2010 VA Form 10-2364a reflects audiology results in graph form. The accompanying audiology consult report reflects that the Veteran's hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 20 25 15 LEFT 25 25 20 20 15 The June 2010 audiology report also reflects word recognition scores of 96 percent for the right ear, and 100 percent for the left ear. An August 2010 VA ENT note reflects that the Veteran reported increasing difficulty with hearing, especially if multiple people are talking. Dr. T.W. provided an impression of "noise inducted hearing loss more than likely due to acoustic trauma in military service." An August 2010 statement from the Veteran's representative reflects that the Veteran was exposed to loud noise driving trucks and that she worked in a motor pool (garage) maintaining these vehicles without ear protection. A March 2014 appellant's brief reflects that the Veteran believes that her hearing has worsened since it was last tested. Old and new evidence of record considered as a whole The Board finds that the additional evidence does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for bilateral hearing loss disability; therefore, the appellant's claim to reopen is denied. The 2010 VA records are new; however, they are not material as they do not indicate that the Veteran has a hearing loss disability for VA purposes. The Veteran's claim to reopen was denied in 2002 because the audiometric findings did not reflect that the Veteran met the criteria for hearing loss disability under 38 C.F.R. § 3.385, an essential element for service connection. The newly received audiology reports still do not raise the reasonable possibility that the Veteran meets this essential element. The Board notes that the August 2010 VA statement by Dr. T.W. is also new; however, it is not sufficient to reopen the Veteran's claim. As noted above, in December 2000 and February 2001, clinicians stated that the Veteran's hearing shift and/or loss was most likely due to excessive noise exposure. Thus, the claims file already contained a nexus opinion. The Board acknowledges that another opinion, in some instances, can be material and thus, sufficient to reopen a claim. However, in the present case, Dr. T.W.'s nexus opinion still does not reflect hearing loss disability for VA purposes. Regardless of the reason for the hearing loss, the claims file does not include evidence of hearing loss disability under 38 C.F.R. § 3.385. Thus, the fact that another clinician has yet again indicated hearing loss due to noise exposure in service is still insufficient to reopen the claim. An August 2010 statement from the Veteran's representative reflects that the Veteran was exposed to loud noise when driving trucks and that she worked in a motor pool (garage) maintaining these vehicles without ear protection. The Board has also considered that the Veteran has asserted, through her representative, that she worked without ear protection in the motor pool. (In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992).) This statement is essentially duplicative of the Veteran's January 2001 statement, which was in evidence at the time of the last final denial, that her unit did not provide ear protection. The Veteran's claim was previously denied because the evidence did not reflect a current disability. The Veteran's assertion, through her representative, that she may now meet the criteria for a bilateral hearing loss disability, in the absence of any supporting evidence, and contrary to the clinical evidence of record, is insufficient to reopen a claim. New and material evidence must provide a reasonable possibility of substantiating the claim. The Board acknowledges that the threshold for reopening a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). However, to allow a Veteran to reopen a previously denied claim merely by stating that she now meets the criteria for a disability would lead to an illogical outcome; VA would have to reopen every claim, in which the Veteran had been previously denied for not having a disability, based solely on her statement that she now believes that she has a current disability, which the Veteran could state an infinite amount of times after each denial, with each statement as to a "current" disability being new. The Board finds that the Veteran's statement does not provide adequate evidence of a current diagnosis. In addition, it is not the burden of VA to provide the Veteran with an examination prior to reopening a claim. The newly received evidence is not material as it does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that the claim for service connection for bilateral hearing loss disability is not reopened. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss disability, the appeal is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs