Citation Nr: 0813655 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 01-02 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date earlier than June 10, 1999, for the grant of a 10 percent disability rating for service-connected tinnitus. 2. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. (The issue of whether there was clear and unmistakable error in a July 9, 1986 Board of Veterans' Appeals (Board) decision which denied entitlement to service connection for tinnitus, is the subject of a separate decision of the Board issued this date.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran served on active duty from January 1972 to January 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The veteran's claims were remanded by the Board in May 2001 in order that the RO could issue a statement of the case with respect to these issues. The May 2001 remand also included an issue of entitlement to a rating in excess of 10 percent for tinnitus. In June 2001, the veteran stated that he wished to withdraw his claim for a rating in excess of 10 percent for tinnitus. This issue was not included in the January 2003 statement of the case and is not currently in appellate status before the Board. This case was previously before the Board in May 2001, June 2004, and August 2005, wherein his claims were remanded for additional development and further consideration. This additional development occurred via the Appeals Management Center (AMC) in Washington, DC. And in a June 2007 supplemental statement of the case (SSOC), the AMC continued to deny the veteran's claims and returned the case to the Board. FINDINGS OF FACT 1. In an unappealed February 1990 rating decision, the RO denied the veteran's claim for service connection for a heart disability. 2. In a July 1986 decision, the Board denied the veteran's claim for service connection for bilateral hearing loss. 3. Most recently, in a December 1996 determination, the RO denied the veteran's petition to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss. 4. Evidence added to record since the RO's February 1990 decision is new, and is not cumulative and redundant of other evidence previously considered, but does not bear directly and substantially upon the specific matter under consideration, and when viewed by itself or in the context of the entire record, is not of sufficient significance that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a heart disability. 5. Evidence added to record since the RO's December 1996 decision is new, and is not cumulative and redundant of other evidence previously considered, but does not bear directly and substantially upon the specific matter under consideration, and when viewed by itself or in the context of the entire record, is not of sufficient significance that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for hearing loss. 6. In October 1998, the RO received the veteran's claim for an increased disability rating for his service-connected tinnitus. CONCLUSIONS OF LAW 1. The February 1990 RO decision that denied the veteran's claim of entitlement to service connection for a heart disability is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002). 2. The July 1986 Board decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 5108 and 7104 (West 2002); 38 C.F.R. §§ 3.156 and 20.1100 (2001 & 2007). 3. The December 1996 RO decision that denied the veteran's petition to reopen a claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002). 4. New and material evidence has not been received to reopen the claim for service connection for a heart disability. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2001 & 2006). 5. New and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2001 & 2007). 6. The criteria are not met for an effective date earlier than June 10, 1999, for the grant of entitlement to a 10 percent disability rating for service-connected tinnitus. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.155, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant 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. In the present case, VA issued VCAA notice letters dated in June 2004, November 2004, September 2005, and August 2006 from the agency of original jurisdiction (AOJ) to the appellant. These letters informed the appellant of what evidence was required to substantiate his petitions to reopen his previously denied claims for service connection and his claim for an earlier effective date. These letters also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. The Board also finds that the November 2004 and August 2006 VCAA notification letters are compliant with Kent. These letters specifically informed the veteran as to what evidence would be necessary to substantiate the element or elements that were required to establish service connection that were found insufficient in the previous denials. The veteran was told to submit evidence pertaining to the reason his claims were previously denied, and the letters notified the veteran of the reason for the prior final denial (i.e. the element of the service claims that were deficient). In addition, the August 2006 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. However, because the instant decision denies the veteran's claims, no disability rating or effective date will be assigned. In the case currently before the Board, the VCAA notice did not make specific reference to all of the applicable information for both the petitions to reopen and the earlier effective date claim. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudicial error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Board notes that the veteran is represented by a service organization in this case. Further, a statement of the case issued in January 2003, and supplemental statement of the case issued in June 2007, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant regulations (38 C.F.R. §§ 3.156, 3.400) for consideration of the veteran's claims. The appellant was, thus, informed of what was needed not only to reopen his previously denied claims, but also to obtain an earlier effective date for the assignment of a 10 percent disability evaluation for his tinnitus. Also, the claimant demonstrated that there was actual knowledge of what was needed to establish the claims. In a statement dated in January 2008, the veteran's representative outlined the criteria necessary to reopen the finally denied claims, as well as the criteria for an earlier effective date, and set forth relevant facts of the case. Actual knowledge is established by statements by the claimant and the claimant's representative that demonstrates an awareness of what was necessary to substantiate his claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) ; see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims 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. In the present case, the unfavorable AOJ decisions that are the basis of the appeal were decided before the issuance of complete appropriate VCAA notice. As such, the timing of that VCAA notice is presumed to be prejudicial. However, the case was readjudicated thereafter. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the Board notes that portions of the veteran's original claims file are not available, and that many documents contained therein are missing, However, wherever possible, copies of previous decisions by the RO and Board, as well as copies of documents submitted by the veteran and/or his representative, were associated with the current, "rebuilt" claims file. The Board likewise acknowledges that, when, as here, records cannot be located, through no fault of the veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit-of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board likewise notes that the claims file contains the veteran's service medical records, reports of VA post-service treatment and examinations, and private medical records, as well as the veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and atherosclerosis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2007). New and Material Evidence Generally, a final VA rating decision 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." 38 C.F.R. § 3.156(a), which defines "new and material evidence", was revised, effective August 29, 2001. The instant claim to reopen was filed prior to that date (in October 1998), and the new definition does not apply. Under the provisions of 38 C.F.R. § 3.156(a), as in effect prior to August 29, 2001, new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered. This comprehends official service department records. 38 C.F.R. § 3.156(c). Earlier Effective Date The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2007). Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The effective date of an award of service connection will be the day following the date of separation from service-if the veteran filed a claim within one year after service. Otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2007). The effective date of an award of service connection will be the day following the date of separation from service - if the veteran filed a claim within one year after service. Otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In cases involving a claim for higher compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from that date; otherwise, the effective date is the date the claim is received. See 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). See also Harper v. Brown, 10 Vet. App. 125 (1997). Where compensation is awarded pursuant to a liberalizing law or VA issue, the effective date shall be in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. See 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. If a claim is reviewed at the request of a claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a)(1)-(a)(3). The applicable statutory and regulatory provisions require that VA look to all communications from the veteran that may be interpreted as applications or claims, both formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 5102; 38 C.F.R. § 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal claim must identify the benefit sought. See 38 C.F.R. § 3.155(a). In order for benefits to be paid under the laws administered by the VA, a specific claim in the form prescribed by the Secretary must be filed. See 38 U.S.C.A. § 5101; 38 C.F.R. § 3.151(a). All claims for benefits filed with the VA, formal or informal, must be in writing. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Analysis New and Material Evidence a. Heart Disability The veteran's claim of entitlement to service connection for a heart disability was initially denied by the RO in a February 1990 rating decision. No appeal was taken from that determination, and it is final. See 38 U.S.C.A. § 7105 (West 2002). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board remains whether new and material evidence has been presented to reopen the claim. The evidence of record at the time of the last final rating decision as to the veteran's heart disability, in February 1990, included the veteran's service medical records which were negative for complaints or treatment of a heart disability, although a benign heart murmur was noted on his November 1973 separation examination. A January 1990 VA cardiovascular examination report indicates that the veteran had a past history of a transient innocent murmur, resolved spontaneously and that there was no current evidence of heart disease. VA medical records submitted since that time indicate that an August 1995 chest x-ray was negative for active cardiopulmonary disease. A May 2006 echocardiogram showed mild tricuspid regurgitation, mild mitral regurgitation, and a possible tiny fistula from aortic root to the right atrium at aortic valve level. An August 2007 VA echocardiogram was negative for evidence of valve disease. Additional records related to his treatment for polysubstance abuse, as well as treatment for his eye, hepatitis, and psychiatric disabilities. As stated above, in order to reopen a claim, evidence received must be both new and material. Additional evidence received after the prior final denial was not of record at the time of the last final rating decision in 1990. The private examination report and VA medical records are not cumulative and redundant of the evidence in the claims file at the time of the RO's February 1990 rating decision. Thus, that evidence is considered "new." As stated above, evidence must be both new and material. To be material, the evidence must bear directly and substantially upon the specific matter under consideration, and when viewed in the context of the record as a whole, be so significant that it must be considered in order to fairly decide the merits of the claim. The basis of the RO's February 1990 denial was that there was no evidence of record confirming that the veteran currently had a heart disability that was incurred or aggravated during his military service. However, many of the records submitted by the veteran during the years since the most recent prior RO denial refer only to the evaluation and treatment, i.e., the current diagnosis and severity, of a heart disability. See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing the veteran's current condition are immaterial to issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence.). The Board is mindful of the veteran's assertions that he is entitled to service connection because he was diagnosed with a heart murmur at his discharge from service. But the mere fact that he was diagnosed with a heart murmur at his discharge from service is insufficient, in and of itself, to suggest in-service incurrence or aggravation of a disability. This is especially true in the absence of any medical evidence suggesting this might have occurred in his particular instance. See Moray v. Brown, 5 Vet. App. 211, 214 (1993) (there must be medical evidence linking a current disability, even assuming the veteran has one, to his service in the military). As already acknowledged, when, as here, a veteran's full claims file is unavailable through no fault of his, the VA's duty to assist, the duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). In this regard, the Board again points out that the veteran has not provided new and material evidence sufficient to reopen his claim, i.e., medical evidence demonstrating that his current heart disability is causally or etiologically related to his military service. Merely reiterating previously made arguments, without independent verification of this, is insufficient grounds to reopen the claim. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312 (1992). b. Bilateral Hearing Loss The veteran's claim of entitlement to service connection for bilateral hearing loss was granted by the RO in November 1977. A noncompensable disability evaluation was assigned, effective August 2, 1977. In September 1984, the RO issued a rating decision wherein severance of service connection for bilateral hearing loss was proposed, and an attached letter provided the veteran with notice of his appellate rights. A February 1985 rating decision confirmed the decision to sever service connection for bilateral hearing loss. The rating decision stated that service connection was severed on the basis that abnormal hearing loss was not shown during or after his military service. The veteran filed a notice of disagreement, the RO issued a statement of the case, and the veteran filed a timely substantive appeal (VA Form 9 or equivalent statement) to perfect his appeal to the Board. The veteran's claim of entitlement to restoration of service connection for bilateral hearing loss was denied by the Board in a July 1986 decision. That decision was not appealed and is final. See 38 U.S.C.A. § 7104. In August 1986, May 1992, August 1995, and December 1996, the RO denied his petition to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss. These decisions were not appealed and, thus, they are final. See 38 U.S.C.A. § 7105. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board remains whether new and material evidence has been presented to reopen the claim. The evidence of record at the time of the last final rating decision as to the veteran's bilateral hearing loss, dated in December 1996, included the veteran's service medical records, VA medical records, and several private medical records. The veteran's service medical records show that the veteran had normal hearing during his military service. A January 1989 letter from W. S. J., M.D. states that the veteran had a normal physical examination of his ears. Dr. J indicated that a November 1984 audiogram showed deterioration of sensorineural hearing loss. Dr. J opined that the veteran had tinnitus secondary to the previously service-connected sensorineural hearing loss. A March 1989 VA audiology evaluation report states that the veteran has high frequency sensorineural hearing loss of an undetermined etiology. Upon physical examination, the ear canals were patent and the tympanic membranes were intact, although there was some calcific plaquing on the right tympanic membrane. A March 1992 VA audiology report indicates that the veteran was diagnosed with sensorineural hearing loss. A January 1995 audiology report from the University of Michigan Hospitals indicates that the veteran was diagnosed with moderate high frequency sensorineural hearing loss bilaterally. The evidence added to the record subsequent to the RO's December 1996 decision includes VA medical records and private medical records. A February 1974 employment physical report states that the veteran reported a history of ear infections, but denied a history of difficulty hearing, ear surgery, and noise exposure, as well as a family history of hearing loss. An October 1999 private medical record indicates that audiological testing showed severe high frequency sensorineural hearing loss. An August 2001 letter from J. V., Ph.D. indicates that the veteran has hearing loss in the high frequencies which could be related to tinnitus. Dr. V. also stated that "the rattling" of a tank could cause hearing loss and tinnitus. Additional VA treatment records, dated at various intervals between 1978 and 2007, show a diagnosis of bilateral hearing loss, as well as treatment for colon, psychiatric, polysubstance abuse, personality, and eye disorders. The additional evidence received after the prior final denial was not of record at the time of the last final RO decision in 1996. The veteran's VA and private treatment records are not, as a whole, cumulative and redundant of the evidence in the claims file at the time of the RO's December 1996 rating decision. Thus, that evidence is considered "new." As stated above, in order to be material, the evidence must bear directly and substantially upon the specific matter under consideration, and when viewed in the context of the record as a whole, be so significant that it must be considered in order to fairly decide the merits of the claim. The basis of the RO's most recent denial in 1996 was that the medical evidence of record only referred to the veteran's post-service evaluation and treatment, and did not show a causal relationship between the veteran's current hearing loss to his military service. In short, the RO found that the evidence submitted was not relevant to the issue of service connection. The additional evidence does not provide a basis for reopening the claim because it is not material. Although some of the appellant's recently submitted VA and private medical records are, as previously acknowledged, new, in that they were not previously of record, they are nonetheless immaterial to his claim for service connection for bilateral hearing loss because they do not address what was missing at the time of the July 1986 Board decision or the more recent December 1996 rating decision, even when considered with the other evidence as a whole. What was missing at the time of the December 1996 rating decision was evidence suggesting the veteran's bilateral hearing loss was incurred or aggravated during his service. The records submitted by him during the years since that 1996 decision only refer to the evaluation and treatment, i.e., the current diagnosis and severity, of his bilateral hearing loss. See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing veteran's current condition are not material to issue of service connection and are not sufficient to reopen claim for service connection based on new and material evidence.). In short, these VA medical records do not show a causal relationship between his service in the military and any current symptomatology or diagnoses related to his bilateral hearing loss. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996); Moray v. Brown, 5 Vet. App. 211, 214 (1993). As already acknowledged, when, as here, a veteran's full claims file is unavailable through no fault of his, the VA's duty to assist, the duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). In this regard, the Board again points out that the veteran has not provided any new and material evidence demonstrating that his current bilateral hearing loss is etiologically related to his military service. The Board is again acknowledges that the veteran feels that he is entitled to service connection because he was previously granted service connection for his bilateral hearing loss, thus suggesting in-service incurrence. But merely reiterating previously made arguments, without independent verification, is insufficient grounds to reopen his claim. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312 (1992). Accordingly, the Board finds that the appellant has not submitted new and material evidence sufficient to reopen his claim for service connection for bilateral hearing loss. And, 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). Earlier Effective Date Service connection for tinnitus was granted by a rating decision dated in May 1988, and an initial noncompensable rating was assigned effective from October 13, 1987. A noncompensable disability evaluation was assigned because the regulations in effect at that time required evidence of "persistent" tinnitus, as a symptom of a head injury, concussion, or acoustic trauma, for assignment of a 10 percent evaluation. See 38 C.F.R. § 4.87, Diagnostic Code 6260 (1998). Notice of the determination was issued, and an appeal was taken. In November 1990, the Board confirmed the denial of the veteran's claim for an increased disability rating on the basis that the veteran's tinnitus was not due to head injury, concussion, or acoustic trauma. That decision was not appealed and is final. See 38 U.S.C.A. § 7104. Nonetheless, in October 1998, the veteran filed a claim for an increased disability evaluation for his tinnitus. As previously discussed, an October 1999 rating decision granted an increased, 10 percent disability rating for his tinnitus, effective June 10, 1999. The veteran's increased disability evaluation was granted on the basis of a June 10, 1999 change in the regulations, which allowed for a 10 percent disability evaluation where there is simply "recurrent" tinnitus. See 38 C.F.R. § 4.87, Diagnostic Code 6260 (2007). The veteran disagreed with the effective date assigned, and this appeal ensued. In this case, the Board finds that the effective date of June 10, 1999 for a compensable evaluation for tinnitus is correct since this is the effective date of the liberalizing change in the rating schedule which provides the basis for the 10 percent evaluation for the veteran's tinnitus. While the veteran's claim was filed before the change in the rating schedule, the effective date cannot be earlier than the effective date of the change in the law. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. In order to be entitled to a 10 percent evaluation prior to June 10, 1999, the veteran would have had to meet the criteria then in effect for such an evaluation. The criteria in effect prior to June 10, 1999 required "persistent" tinnitus due to head injury, concussion, or acoustic trauma for a compensable evaluation and, while the Board again concedes, as it did in November 1990, that the evidence suggests that the veteran's tinnitus could be characterized as "persistent" tinnitus, the medical evidence remains negative for a determination that the veteran's tinnitus was due to a head injury, concussion, or acoustic trauma, which would allow for a compensable evaluation prior to the June 1999 change in the rating schedule. As a result, were it not for the change of the rating schedule effective June 10, 1999 it appears that the veteran's tinnitus would have continued to have warranted a noncompensable evaluation. Thus, the Board finds that the requirements for an earlier effective date for a 10 percent disability evaluation for tinnitus have not been met. For these reasons and bases, the preponderance of the evidence is against the veteran's claim, meaning the benefit-of-the-doubt rule is inapplicable. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The petition to reopen the claim for service connection for a heart disability is denied. The petition to reopen the claim for service connection for bilateral hearing loss is also denied. The claim for an effective date earlier than June 10, 1999, for the grant of a 10 percent disability evaluation for service-connected tinnitus, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs