Citation Nr: 0813429 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-12 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. 2. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the right knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from May 1978 to May 1982. 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 Winston-Salem, North Carolina, wherein the RO determined that new and material evidence had not been submitted to reopen a previously denied claim of service connection for hearing loss. This appeal also stems from a February 2005 rating decision, wherein the RO granted service connection for chondromalacia patella of the right knee; an initial 10 percent disability evaluation was assigned effective November 20, 2003. The veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in March 2008. The veteran's case was remanded for additional development in July 2007. The issue of entitlement to an initial evaluation in excess of 10 percent for right knee is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for hearing loss was denied by a November 1982 rating decision. The veteran did not appeal the denial. 2. The evidence received since the November 1982 rating decision, when considered by itself, or in the context of the entire record, does not raise a reasonable possibility of substantiating the claim of service connection for hearing loss. CONCLUSION OF LAW New and material evidence sufficient to reopen a previously denied claim of service connection for hearing loss has not been received. 38 U.S.C.A. §§ 1131, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran originally filed a claim of entitlement to service connection for hearing loss in June 1982. The claim was denied in a November 1982 rating decision. Notice of the denial and of appellate rights was provided in November 1982. The veteran did not appeal the denial. The denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103 (2007). As a result, a claim of service connection for hearing loss may now be considered on the merits only if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). 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 claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (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. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.156(a) (2007), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, new and material evidence can be neither 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. 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). As already noted, a claim of entitlement to service connection for hearing loss was denied in a November 1982 rating decision. The evidence of record at the time of the November 1982 rating decision consisted of the veteran's service medical records (SMRs) and a VA examination dated in August 1982. The veteran's SMRs include an April 1978 entrance examination. Audiometric testing performed at the veteran's entrance into service revealed puretone thresholds of 25, 5, 5, 5, and 55 decibels in the right ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively and 5, 5, 5, 5, and 10 decibels in the left ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. A reference audiogram performed in February 1979 revealed puretone thresholds of 20, 5, 5, 5, and 40 decibels in the right ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively and 5, 5, 5, 5, and 15 decibels in the left ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. The veteran reported left ear pain in January 1981. He was assessed with left otitis media at that time. A reference audiogram performed in January 1981 revealed puretone thresholds of 15, 15, 10, 15, and 50 decibels in the right ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively and 20, 15, 10, 15, and 25 decibels in the left ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. The veteran's discharge examination was not of record. The August 1982 VA examination report revealed puretone thresholds of 5, 5, 0, 5, and 45 decibels in the right ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively and 5, 5, 5, 10, and 15 decibels in the left ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. The veteran had speech recognition scores of 100 percent bilaterally. The RO denied the claim in November 1982. The RO reviewed the SMRs and VA examination and determined that the veteran's hearing loss was incurred prior to his military service and was not aggravated during his military service. The veteran submitted an application to reopen his claim of service connection for hearing loss in November 2003. Evidence received since the November 1982 rating decision consists of VA outpatient treatment reports dated from March 2004 to October 2006, a VA examination report dated in March 2004, a VA opinion dated in October 2004, private treatment reports from T. Benson, M.D., of Randolph Family Medical Clinic dated from December 1996 to January 2004, private treatment reports from Lakeside Family Physicians dated from November 2002 to October 2006, private treatment reports from Presbyterian Healthcare dated from November 2002 to April 2006, an unsigned and undated FMLA Certification of Healthcare Provider, and the veteran's testimony from a Travel Board hearing in March 2008. All of the medical evidence listed above is new in that it was not of record before; however, it is not material. None of the records, either VA or private, reveal complaints or treatment for hearing loss. The March 2004 VA examination report and the October 2004 medical opinion were unrelated to the veteran's claim for hearing loss. The veteran's March 2008 testimony is new in that it was not of record before; however, it is not material. The veteran testified that he was exposed to loud generators in service and his hearing loss was present in service. But he said he could not recall whether he sought any treatment for hearing loss within a year of his discharge from service. He also indicated that he did not seek any treatment for hearing loss at VA or with his private physicians since service. As noted above, the newly received evidence is not material. This is so because the evidence received since November 1982 does not raise a reasonable possibility of substantiating the veteran's claim. It does not tend to prove any point not already established in 1982. The veteran's claim was denied in November 1982 because the veteran's hearing loss was present prior to service and his SMRs did not reveal that his hearing loss was aggravated by military service. None of the newly received records provides an opinion linking hearing loss to the veteran's military service. In fact, the additional medical evidence does not reference any treatment for or complaints of hearing loss since the veteran separated from service and the veteran testified that he had not sought treatment for hearing loss at VA or with his private physicians. His lay beliefs alone that his current hearing loss was incurred in or aggravated during active service cannot be accepted as material evidence for purposes of reopening the claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108). In summary, the evidence falls short of raising a reasonable possibility of substantiating the claim. To substantiate a claim of service connection, there must be a currently diagnosed disability and some nexus between the current disability and military service. Without some evidence tending to prove such a disability and a nexus to service, the information received since the prior final denial may not be considered new and material evidence. In the absence of new and material evidence, the veteran's claim is not reopened Veterans Claims Assistance Act of 2000 In deciding the issues in this case, the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007). The Board has also considered the implementing regulations. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, the Secretary is required to provide certain notices when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of the information and evidence that is to be provided by the claimant and that which is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West 2002). In those cases where notice is provided to the claimant, a second notice is to be provided to advise that, if such information or evidence is not received within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C.A. § 5103(b) (West 2002). In addition, 38 C.F.R. § 3.159(b), details the procedures by which VA will carry out its duty to notify. Kent v. Nicholson, 20 Vet. App. 1 (2006), established new requirements regarding the VCAA notice and reopening claims. The Court held that the VCAA notice must include the bases for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). There is no evidence or information needed to complete the veteran's application. The veteran has submitted the necessary evidence to show that he is seeking to reopen a previously denied claim of service connection for hearing loss. The veteran submitted his current claim in November 2003. The RO wrote to the veteran in December 2003 and July 2005 and notified him of the evidence/information needed to substantiate his claim and establish service connection for hearing loss. He was told what VA would do in the development of his claim and what he should do to support his contentions. The veteran was specifically informed that he needed to submit new and material evidence for his claim for service connection for hearing loss. He was informed that new evidence means evidence submitted for the first time and material evidence is evidence that relates to an unestablished fact necessary to substantiate the claim. Although the notice did not identify the specific basis of the prior denial, the record reflects that the RO explained the basis of the denial in the rating decision on appeal and in the Statement of the Case. Having reviewed the text of these decisions, the Board finds that a reasonable person would have understood basis of the denial and, in light o the notice discussed above, would have understood the type of evidence needed to reopen the claim. Sanders v. Nicholson, 487 F.3d 881 (2007). Therefore, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Additionally, the veteran was told of the criteria used to award disability ratings and the criteria for assigning an effective date by way of a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In regard to the application to reopen a claim of service connection for hearing loss, given that new and material evidence has not been received, the Board finds that VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R § 3.159(c)-(e) (2007). This is especially so given that the Board does not have jurisdiction to act further with respect to this claim, at least not until new and material evidence is received. Barnett, supra. The Board notes that the RO has obtained service medical records, VA treatment reports, and private treatment reports. The veteran was afforded a Travel Board hearing. The veteran has not alleged that there is any outstanding evidence that would support his contention that service connection for hearing loss should be granted. Consequently, given the standard of the new regulation, the Board finds that VA did not have a duty to assist that was unmet. ORDER The application to reopen a claim of entitlement to service connection for hearing loss is denied. REMAND A review of the claims file reveals that a remand is necessary in order to properly adjudicate the veteran's claim for an initial evaluation in excess of 10 percent for chondromalacia patella of the right knee. At his March 2008 hearing, in connection with his claim for an initial evaluation in excess of 10 percent for his right knee disability, the veteran testified that he felt his right knee disability had increased in severity since the March 2004 VA examination. The Court has held that, when a veteran-claimant alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the veteran was entitled to a new examination after a two- year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). The Board notes that the veteran failed to report for two examinations scheduled to assess his right knee disability. During his hearing, he indicated that he missed the first examination due to transportation problems, and never received notice of the second. Therefore, the Board finds that another attempt should be made to schedule the veteran for an examination. However, the veteran is hereby notified that it is his responsibility to report for scheduled examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. The veteran should be contacted and requested to identify any sources of treatment, both VA and private, for his service-connected right knee disability. Any outstanding records identified by the veteran should be obtained and associated with the claims file and any records promulgated by VA dated after October 2006 should be obtained and associated with the claims file. 2. A VA orthopedic examination should thereafter be scheduled to determine the extent of the veteran's right knee disability. All necessary tests and studies, including range of motion studies, should be conducted. The orthopedic examination report must discuss any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain with use, and provide an opinion as to how these factors result in any limitation of function. If the veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of motion (beyond that shown clinically). This should be done both in terms of flexion and extension. VAOPGCPREC 09-2004. 3. Thereafter, review the claims file to ensure that the requested development has been completed. In particular, review the requested examination report to ensure that it is responsive to and in complete compliance with the directives of this remand, and if it is not, take corrective action. 4. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs