Citation Nr: 0811536 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-22 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from March 1946 to March 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which declined to reopen the veteran's previously denied claim for service connection. In March 2008, the Board granted the appellant's motion to advance the case on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. Service connection was denied for hearing loss by rating decision in March 2000. Although the veteran perfected an appeal of that decision, he withdrew that appeal in January 2003. 2. The last final (unappealed) disallowance of the veteran's attempt to reopen the claim was in December 2003, for a lack of new and material evidence. 3. Evidence presented since the December 2003 denial relates to an unestablished fact necessary to substantiate the claim; however, it does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2003 rating decision declining to reopen the claim for service connection for hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2002); 38. C.F.R. §§ 3.160, 20.302, 20.1103 (2003). 2. The evidence added to the record since December 2003 is not new and material; the claim for service connection for hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in August 2004, the agency of original jurisdiction (AOJ) satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the AOJ notified the veteran of information and evidence necessary to submit to reopen his previously denied claim of service connection. It explained the reason for the prior denial, as well as the elements necessary to substantiate the underlying service connection claim. There was also notice of information and evidence that VA would seek to provide and information and evidence that the veteran was expected to provide. He was instructed to submit any evidence in his possession that pertained to his claim. The veteran received fully compliant, pre-adjudicatory notice. Regarding the duty to assist, in a claim to reopen, VA's responsibility extends to requesting evidence from any new source identified by the claimant, and if that evidence is then not new and material, the claim is not reopened, and VA's duties have been fulfilled. To be clear, VA does not have a duty to provide the veteran a VA examination and/or an opinion if the claim is not reopened. See 38 U.S.C. § 5103A(f) (West 2002); 38 C.F.R. § 3.159(c)(4)(C)(iii) (2007). As discussed above, the AOJ has complied with VA's notification requirements and informed the veteran of the information and evidence needed to reopen and substantiate his claim. All identified and available treatment records have been secured. Since no new and material evidence has been submitted, however, an examination and an opinion are not required. The duty to assist has been fulfilled. New and Material Evidence The veteran seeks service connection for hearing loss. This claim was denied by rating decision in March 2000. While the veteran appealed that decision, he later withdrew the appeal in January 2003. The 2000 rating decision, therefore, became final. 38 U.S.C.A. § 7105(c) (West 2000); 38. C.F.R. §§ 3.160, 20.302, 20.1103 (2000). Once a decision becomes final, new and material evidence is required to reopen the claim which was denied. 38 U.S.C.A. § 5108 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." "New" evidence is existing evidence not previously submitted to agency decisionmakers. "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 neither be cumulative nor 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. See 38 C.F.R. § 3.156(a) (2007). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The veteran attempted to reopen his claim in September 2003. By rating decision in December 2003, the AOJ declined to reopen the claim, finding that new and material evidence had not been submitted. The veteran appealed the decision; however, he again withdrew his appeal, this time in July 2004. He submitted his current application to reopen in August 2004; the claim was denied by rating decision in June 2005. He has perfected an appeal of that decision. Therefore, the December 2003 rating decision is considered the last final disallowance of the claim. 38 U.S.C.A. § 7105(c) (West 2002); 38. C.F.R. §§ 3.160, 20.302, 20.1103 (2003). At the time of the December 2003 denial, the evidence of record consisted of private treatment records dated from September 1992 to October 2001 and in March 2002; records from the Jackson Ear Clinic, dated in March 1993 and October 2000; and, VA outpatient clinical records, dated from December 1995 to January 1996, and from March 1999 to April 2003. There were also personal statements from the veteran regarding his hearing loss. The claim was denied as the veteran had not presented evidence establishing a nexus between his current hearing loss and his service. Since December 2003, the veteran has submitted additional treatment records, continuing to show a current diagnosis of hearing loss with the need for hearing aids. Additionally, the veteran's treating otologist submitted two letters regarding the etiology of his hearing loss. The first letter, received in January 2004, recounted the veteran's related history that he ruptured his eardrums in service due to loud noises, and found that this sort of event "obviously can cause some hearing problems." There was no further discussion of the particulars of the veteran's case. In the second letter, received in September 2004, the specialist reported that while the veteran had significant hearing loss, there was "no way of determining whether this was caused in the service or subsequent to the service." He further indicated, however, that it was "instructive ... that his hearing in 1993 was much better than it is now." The current treatment records are new, in that they were not previously submitted to agency decision makers. However, they are not material, as they did not relate to the unestablished fact necessary to substantiate the claim, that is, a nexus to service. These new treatment records do not speak to such a connection. Likewise, the two opinions offered by the private hearing specialist are also new, but not material. Each related to an unestablished fact necessary to substantiate the claim, in that they related to whether a relationship existed between the veteran's noise exposure in service and his current hearing loss. Yet, neither opinion raised a reasonable possibility of substantiating the claim. The January 2004 opinion stated generally that ruptured eardrums can lead to hearing loss, but fell short of actually relating the veteran's disability to his service. That a rupture "can cause" hearing problems is too equivocal a foundation on which to base service connection. It also spoke of "some hearing problems" but did not speak to the veteran's particular hearing problem. Even presuming its credibility, it does not raise a reasonable possibility of substantiating the claim. This is so especially in light of the more detailed statement that the same physician submitted months later, in September. Then, the physician clearly indicated that he was unable to offer an opinion as to the etiology, but then pointed out that the veteran's hearing was much better in 1993, than it was currently, more than forty years after his separation from service. Rather than raise a reasonable possibility of substantiating the claim, this opinion tends to find against it. In all, though much new evidence has entered into the record since the last final disallowance, that evidence has not been material. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt provision does not apply. New and material evidence having not been submitted, the claim cannot be reopened. ORDER The application to reopen the previously denied claim of entitlement to service connection for hearing loss is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs