Citation Nr: 0810379 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-18 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from August 1942 to November 1945. This appeal to the Board of Veterans Appeals (Board) is from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. The RO denied service connection for bilateral hearing loss and tinnitus in a January 2002 rating decision and, although notified of that denial, the veteran did not initiate an appeal. 2. The additional evidence received since that January 2002 decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate these claims, and does not raise a reasonable possibility of substantiating them. CONCLUSIONS OF LAW 1. The January 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2007). 2. New and material evidence has not been received since that January 2002 decision to reopen the claims for service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5100 et seq (West 2002 and Supp. 2007). See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The duty to notify was accomplished by way of a VCAA letter from the RO to the veteran dated in March 2005. This letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) by: (1) informing him of the information and evidence not of record that was necessary to substantiate his claims; (2) informing him of the information and evidence VA would seek to provide; (3) informing him of the information and evidence he was expected to provide; and (4) requesting that he provide any evidence in his possession pertaining to his claims. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, with regards to new and material evidence - the threshold preliminary requirement for reopening the claims, the March 2005 VCAA notice letter is compliant with the recent U.S. Court of Appeals for Veterans Claims (Court) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since it sufficiently explained the bases of the prior denial (i.e., the deficiencies in the evidence when the claims were previously considered). With regards to additional VCAA notice, more recent March 2006, June 2006, and August 2006 letters from the RO further advised the veteran that a downstream disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Pelegrini II, the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, most of the VCAA notices mentioned were provided after the initial unfavorable May 2005 AOJ decision. However, the Federal Circuit Court and Veterans Claims Court have since further clarified that VA may provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (where the Federal Circuit Court held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the RO provided additional VCAA Dingess notices in June and August 2006, but did not go back and readjudicate the claims by way of a subsequent SSOC. So, in essence, based on the above caselaw, the timing defect in VCAA notice was not rectified. Regardless, the Court also recently held the failure of the claimant to submit additional evidence following proper notification may constitute a waiver of readjudication or render the error harmless. Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007). Here, the veteran did submit a lay statement from his wife, but it was essentially cumulative of arguments previously made. See lay statement from wife dated in March 2007. Moreover, he specifically stated in June 2006 that he had reviewed the SSOC issued earlier that month and had no further evidence to submit. Therefore, the absence of a subsequent SSOC after these notices is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. Medrano, 21 Vet. App. at 173. It follows that a prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is simply not warranted here. Furthermore, to the extent it could be argued that there was a timing error, overall, the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post-decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). In addition, there is no allegation or evidence that the timing error affected the essential fairness of the adjudication of the claims. As for the duty to assist, the RO obtained the veteran's service medical records (SMRs) and private medical records he authorized VA to obtain. He also has submitted VA treatment records, duplicate SMRs, a lay statement from his wife, and personal statements in his NOD dated in September 2005 and his substantive appeal (VA Form 9) dated in May 2006. Neither he nor his representative has stated any additional evidence remains outstanding. No VA examination or opinion has been obtained, although the veteran requested this in his May 2006 substantive appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) and 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). However, the duty to provide a VA examination and opinion only applies to a claim to reopen a finally adjudicated decision if new and material evidence is presented or secured. 3.159(c)(4)(C)(iii). Here, the Board is determining there is no new and material evidence to reopen the claim. Hence, a remand for a VA examination and opinion is not warranted. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. New and Material Evidence to Reopen the Bilateral Hearing Loss and Tinnitus Claims The RO denied service connection for bilateral hearing loss and tinnitus in a January 2002 rating decision because, although there was sufficient evidence of then current disorders that had been diagnosed since January 1987 (bilateral hearing loss) and June 1994 (tinnitus), there was no evidence showing the veteran had these conditions during his military service or medical nexus evidence otherwise etiologically linking them to his service. The RO pointed out his service and post-service medical records for many years thereafter were unremarkable for evidence of either bilateral hearing loss or tinnitus. The RO notified him of the January 2002 decision and apprised him of his procedural and appellate rights, but he did not initiate an appeal. Therefore, that decision is final and binding on him based on the evidence of the record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2007). The veteran filed a petition to reopen his claims for service connection for bilateral hearing loss and tinnitus in February 2005. Therefore, the amended regulations with respect to new and material evidence are for application. See 66 Fed. Reg. at 45,620, indicating to apply the revised version of 38 C.F.R. § 3.156 to petitions to reopen filed on or after August 29, 2001. Although not binding upon the Board, the RO in its May 2005 rating decision at issue made a threshold preliminary determination of whether there was new and material evidence to reopen these previously denied claims. In any event, the Board has jurisdictional responsibility to determine whether it is proper for the claims to be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine on its own whether there is new and material evidence to reopen the bilateral hearing loss and tinnitus claims before proceeding to readjudicate the underlying merits of the claims. 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. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" 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 unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2007). New and material evidence cannot be cumulative or 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. Id. Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of the all evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Evidence of record at the time of the prior January 2002 rating decision consisted of the veteran's original claim application (VA Form 21-4138), his SMRs, DD Form 214, and private medical records. The additional evidence received since that January 2002 rating decision consists of the veteran's personal lay statements in his substantive appeal dated in May 2006 and in his NOD dated in September 2005, a lay statement from his wife dated in March 2007, VA treatment records dated from March 2003 to February 2005, and duplicate SMRs. While all of these additional records (except, perhaps, the duplicate SMRs) are "new" in the sense they did not exist at the time of the January 2002 rating decision, they are nonetheless immaterial to the central issues. In other words, this additional evidence still does not address the reasons service connection for bilateral hearing loss and tinnitus was denied previously in the January 2002 final rating decision. Specifically, these records do not suggest complaints or treatment during service for bilateral hearing loss or tinnitus. They also do not suggest an etiological link between the veteran's current hearing loss and tinnitus and his military service. In Reonal v. Brown, 5 Vet. App. 458 (1993), the Court held that the Justus v. Principi, 3 Vet. App. 510 (1992) "presumption of credibility" did not "arise" or apply to a physician's statement relating the veteran's current disability to service where the opinion was based upon an inaccurate factual premise or history related by the veteran which had been previously considered and rejected in a prior, final RO decision. Here, a VA audiology consult report dated in February 2005 included the veteran's reported history that he had developed bilateral hearing loss and tinnitus after being exposed to the sound of artillery shells exploding and suffering a concussion in 1943, while serving in World War II. But in the earlier January 2002 rating decision, the RO already had considered and rejected the veteran's contentions of continuity of symptomatology of his hearing loss and tinnitus, and that these conditions were caused by artillery fire and a concussion suffered in service. As such, the medical statement in question cannot serve as the suggestive nexus to service, as it is based on a reported history which previously has been considered and rejected by the RO. Moreover, the Board emphasizes that in Elkins v. Brown, 5 Vet. App. 474 (1993), the Court determined, in part, that two private nexus opinions were not "material" with respect to reopening a claim for service connection because there was no indication that either physician had established the nexus on a basis separate from the veteran's reported medical history during his military service, which was unsupported by clinical findings. Applying the holding of the Elkins case to the current appeal, the above VA treatment record documents current hearing loss and tinnitus solely in the context of prior in-service acoustic trauma based on the veteran's reported history of the incident. There is no medical record in the claims file specifically documenting hearing loss and tinnitus as the result of artillery exposure and concussion during service. In fact, there is no medical evidence he suffered a concussion during service. Therefore, his VA treatment records that simply reaffirm current hearing loss and tinnitus do not relate to an unestablished fact necessary to substantiate his claims, and thus, do not raise a reasonable possibility of substantiating them. 38 C.F.R. § 3.156(a). The Board emphasizes that lay testimony that is cumulative of previous contentions that were considered by the decision maker at the time of the prior disallowance of the claim is not "new" evidence. Bostain v. West, 11 Vet. App. 124, 127 (1998). Where, as here, the determinative issue is the medical diagnosis or etiology, competent medical evidence is required. Lay assertions are insufficient to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet. App. 211, 214 (1993). A lay statement from the veteran's wife dated in March 2007 asserted that his ears would bleed onto the pillows when he returned from the war, and that his hearing had gotten progressively worse since his separation from service. Also, his May 2006 substantive appeal reasserted his contention that his disabilities were caused by noise exposure during service. Keep in mind, though, the RO already considered his contentions of in-service injury to his ears in the January 2002 rating decision, but rejected them because his SMRs did not mention complaints of hearing loss or tinnitus and since there also was no evidence of acoustic trauma or a concussion during service. Thus, having been previously considered and rejected, his additional testimony and statements to this same effect cannot be held to be "new" evidence. Reid v. Derwinski, 2 Vet. App. 312 (1992). In sum, none of the additional evidence since the prior final January 2002 decision addresses the elements of service connection that were missing - i.e., in-service disorders or a competent nexus (etiological link) to service. Thus, there is no new and material evidence to reopen the claims and the petition must be denied. See 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received, the claim for service connection for bilateral hearing loss is not reopened. As new and material evidence has not been received, the claim for service connection for tinnitus also is not reopened. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs