Citation Nr: 0810635 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 02-11 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1974 to April 1976. The case is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter was originally before the Board on appeal from a May 2001 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In a decision issued in January 2005, the Board denied the veteran's appeal seeking to reopen a claim of service connection for tinnitus. He appealed that decision to the Court. In January 2007, the Court issued an order that vacated the January 2005 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in a January 2007 Joint Motion by the parties. In August 2007, the Board remanded the case to comply with the mandates of the Court order and Joint Motion. The Veterans Law Judge who issued the January 2005 Board decision is no longer with the Board, and the case has been reassigned to the undersigned. FINDINGS OF FACT 1. An unappealed rating decision in July 2000 declined to reopen a claim of service connection for tinnitus; the claim was originally denied (in January 1984) essentially on the basis that such disability was not manifested in service or related to service. 2. Evidence received since the July 2000 rating decision is new, but either duplicates or is cumulative to evidence then of record, or is not material as to whether current tinnitus is related to noise exposure in service; it is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since the July 2000 rating decision is not new and material and the claim of service connection for tinnitus may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (effective prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty 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). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, an August 2007 letter issued in response to remands by the Court and the Board provided certain essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). This letter instructed the appellant that since his claim of service connection for tinnitus had been subject to a previous final denial, in order for him to reopen his claim, he needed to submit new and material evidence. Kent v Nicholson, 20 Vet. App. 1 (2006). The August 2007 letter explained what kind of evidence would be new and material and provided him with the regulatory definition of new and material evidence that was in effect when he filed his claim. It also informed him of the basis for the previous denial and what the evidence must show to substantiate a claim of service connection for tinnitus. Id. This letter also notified him of the evidence and/or information necessary to establish a disability rating or the effective date of an award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The veteran was not prejudiced by the untimeliness of the notice; subsequent to issuance of complete notice and once the veteran and his attorney responded and further development was completed, November 2007 and January 2008 supplemental statements of the case (SSOC) readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006) (finding that a timing defect can be cured by notice followed by readjudication of the claim by the Agency of Original Jurisdiction). The veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in April 2001 and April 2002. The appellant has not identified any pertinent evidence that remains outstanding and in a November 2007 statement indicated that he had no more information or evidence to submit. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis As noted above, the veteran's claim was last finally denied by the RO in July 2000. He was properly notified of that decision and of his appellate rights, and he did not appeal it. Accordingly, it is final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, "[I]f 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." "New and material evidence" means evidence not previously submitted to agency decisionmakers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). [An amended version of 38 C.F.R. § 3.156(a) is effective only for claims filed on or after August 29, 2001. Here, the petition to reopen was filed before that date. Hence, the new 38 C.F.R. § 3.156(a) does not apply.] When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Evidence of record in July 2000 included the veteran's service medical records and separation examination report which are silent for complaints or findings of tinnitus. The veteran's DD Form 214 reflects that his military occupational specialty was voice radio operator. On November 1983 VA ear, nose, and throat examination, the veteran complained of hearing loss and constant ringing in his ears. The diagnoses were constant tinnitus aurium and bilateral sensorineural hearing loss. An unappealed January 1984 rating decision denied service connection for tinnitus, finding that such disability was not noted in (and by inference was unrelated to) the veteran's service. In June 2000, the veteran submitted a claim of service connection for constant ringing in his ears. He stated that at his service separation examination he was told he had tinnitus. A report of audiological testing by his employer contains no mention of tinnitus complaints. Evidence added to the record since July 2000 includes June 2000 to October 2007 VA treatment records that consistently report subjective tinnitus as one of the veteran's medical conditions. A November 2000 VA audiology consultation report shows the veteran reported a history of tinnitus and in service and post-service noise exposure. On April 2001 VA examination, the veteran described a constant bilateral ringing that was worse on the right with a gradual onset 15 to 20 years earlier. He reported no history of ear pathology. He provided a history of noise exposure as a result of construction work "all my life," working in a sugar factory off and on, and hunting. In service he had worked as a voice radio teletype operator. The examiner stated that there was no evidence of record to support the onset of tinnitus during service and that it was less likely than not that the veteran's tinnitus was related to noise exposure in service. The examiner noted that the veteran's first documented complaint of tinnitus was in 1983, and that he had a history of occupational noise exposure after service. On April 2002 VA examination, the veteran reported he had a constant bilateral high-pitched tinnitus that started in the 1980s. He stated that he had been exposed to excessive noise in service working around teletypes, voice radios, and M-16s. The examiner noted that he had noise exposure and hearing loss prior to entering service and that there was no evidence in his service records documenting that he had tinnitus during service. It was noted that the veteran had additional noise exposure after service, but prior to his 1983 VA examination. The examiner concluded that there was not enough evidence available to substantiate the veteran's claims of having tinnitus in service and that it was less likely than not that the veteran's tinnitus was caused by excessive noise while in the military. An undated letter from the veteran's sister states that the veteran did not have problems with his hearing before service, but that he had difficulty hearing after service. He would often ask people to repeat themselves. A February 2005 statement from the veteran reports that he did not think there would be any remarks about tinnitus in his service medical records because there was no treatment for tinnitus at that time. He stated he complained about tinnitus during service, but was told just to live with it. He reported that in his post-service jobs, he always wore hearing protection and that in his construction job he was away from immediate noise producing areas and the noise he was exposed to there was no greater than what would be encountered in normal everyday life. VA treatment records and VA examination reports are "new" in that they were not before the RO at the time of the last prior final denial in July 2000. However, as they do not tend to relate the veteran's tinnitus to service, they do not bear directly and substantially on the matter under consideration, and are not material. VA treatment record notations that the veteran has subjective tinnitus are merely cumulative of information of record in July 2000. April 2001 and April 2002 VA examination reports opine that it is less likely than not that his tinnitus is related to service. Hence, they are not so significant that they need to be considered in order to fairly decide the merits of his claim as they are against his claim. The veteran's sister's statement is new as it was not previously of record; however, it is not material as it talks about the veteran's hearing loss and does not provide any information regarding tinnitus. Regarding the veteran's own opinion/assertions that he has tinnitus related to service, such opinion is not competent evidence, as he lacks medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While his statements that he experienced tinnitus during service and regarding noise exposure are credible, they are essentially cumulative of information previously of record, do not provide a more complete picture of the origin of tinnitus, and are not so significant that they must be considered. In sum, no item of evidence received subsequent to the RO's July 2000 rating decision bears directly and substantially upon the specific matter at hand, or is so significant that it must be considered in order to fairly decide the merits of the claim of service connection for tinnitus. In fact, to the extent that competent evidence added to the record since July 2000 addresses the matter of the etiology of the veteran's tinnitus, it is counter to his claim. Accordingly, the additional evidence received since July 2000 is not "new and material evidence," and the claim of service connection for tinnitus may not be reopened. ORDER The appeal to reopen a claim of service connection for tinnitus is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs