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