Citation Nr: 1300470 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 12-11 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that in his May 2011 notice of disagreement (NOD) the Veteran had requested a personal hearing before the RO. A June 2011 informal conference report indicates that the Veteran was contacted regarding the issue of whether new and material evidence had been received to reopen a previously denied claim of service connection for left ear hearing loss, but that the Veteran stated that he no longer desired a hearing in connection with his appeal. Accordingly, the Board finds that the Veteran's request for an RO hearing was withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. By prior final decisions, VA denied a claim of service connection for left ear hearing loss. 2. Evidence received since the most recent final decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the left ear hearing loss claim; nor does it raise a reasonable possibility of substantiating the claim, trigger the duty to assist, or raise a new theory of entitlement to service connection. CONCLUSION OF LAW New and material evidence to reopen a claim of service connection for left ear hearing loss has not been received. 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. The Veteran's petition to reopen his claim of service connection was received in October 2010. In December 2010, the RO sent to the Veteran a letter notifying him that his claim of service connection for left ear hearing loss was previously denied, notification of which was sent to him in June 2007. The letter informed him that service connection was denied in July 2003 because the evidence failed to show that he had left ear hearing loss in service or that left ear hearing loss manifested to a compensable degree within a year of service. The RO also noted that although the Veteran's VA treatment records contained a diagnosis of left ear hearing loss, there was no evidence relating that diagnosis to service. The RO specifically stated that the Veteran should submit new evidence related to that fact. The Board finds that the December 2010 letter adequately informed the Veteran of the evidence and information necessary to reopen his claim for service connection for left ear hearing loss. Although the letter did not also inform the Veteran of the evidence and information necessary to establish entitlement to the underlying claim, any notice error in this regard is harmless because, as will be discussed in further detail below, the Veteran has not submitted new and material evidence sufficient to reopen his claim. Accordingly, the Board finds that the December 2010 notice letter afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. Pertinent evidence includes his service treatment records (STRs), VA treatment records and examination reports, private medical records, and lay statements in support of his claims, to include a statement from his spouse. The Veteran withdrew his request for a hearing. The Veteran has not alleged that there is any additional outstanding evidence pertinent to his claim and the Board is also unaware of any such evidence. Moreover, the duty to provide a VA medical examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As will be discussed below, new and material evidence has not been submitted and the Veteran's service connection claim will not be reopened; therefore, an examination is not required. Indeed, none of the evidence submitted since the last final denial triggers VA's duty to provide a medical examination. Thus, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. II. Analysis The Veteran originally filed a claim for service connection for bilateral hearing loss in June 1983. In September 1983, the RO granted service connection for right ear hearing loss upon finding that right ear hearing loss at 4000 hertz was shown in service, but denied service connection for left ear upon finding that there was no evidence demonstrating left ear hearing loss that was incurred or aggravated in service. The Veteran did not file an NOD as to that decision and the September 1983 RO decision therefore became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (1983). In July 2003, the Veteran's claim for service connection for left ear hearing loss was "reopened" and denied on the merits. As the Veteran did not file an NOD as to that decision, it too became final. Id. The Veteran again sought to reopen his claim for service connection for left ear hearing loss in May 2007, which application was denied by the RO that same month and the Veteran was provided notice of that denial in June 2007. The May 2007 RO decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2006). As a result of the finality of the May 2007 RO decision, a claim of service connection for left ear 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 denial. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that it 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 claim and adjudicate the claim 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. Id. at 1384; see Butler v. Brown, 9 Vet. App. 167, 171 (1996). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. In this case, the evidence of record at the time of the May 2007 RO decision included the Veteran's STRs, VA audiological examination reports, private medical evidence, and lay statements in support of claim. The Veteran's STRs contain several audiograms documenting right ear hearing loss at 4000 hertz. See 38 C.F.R. § 3.385 (2012) (providing that impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent). Regarding the Veteran's left ear hearing acuity, while the in-service audiograms indicated some degree of left ear hearing loss at 4000 hertz, the Veteran was not shown to have left ear hearing impairment for VA purposes. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that "the threshold for normal hearing is from 0 to 20 [decibels], and higher threshold levels indicate some degree of hearing loss"); 38 C.F.R. § 3.385. The Veteran's post-service medical records contain the report of a July 1983 VA examination, wherein it is noted that the Veteran attributed his hearing loss to his exposure to noise from jet engines while working on the flight deck for most of his military service. Audiometric testing done at the time was suggestive of left ear hearing loss for VA purposes. An April 2003 VA audiology examination report noted the Veteran's report of noise exposure in service from jet engines while working on the flight deck. The Veteran stated that he "sometimes wore ear protection." Audiometric testing revealed left ear hearing loss for VA purposes. Upon examination of the Veteran and in consideration of the evidence of record, the VA audiologist opined the Veteran's left ear hearing loss was not related to his in-service noise exposure. The basis of the audiologist's opinion was that the in-service audiograms, to include the one performed at the time of separation, were negative for left ear hearing loss. The record as it existed at the time of the May 2007 RO decision also contained VA treatments records pertaining to treatment of the Veteran's bilateral hearing loss. While those records indicated that the Veteran's hearing loss was increasing in severity bilaterally, they do not contain evidence associating the Veteran's left ear hearing loss with service. In a December 2007 statement, the Veteran reiterated his belief that his hearing loss was due to acoustic trauma in service from working on the flight deck as an aircraft mechanic. The Veteran noted that ear protection was worn, but stated that it did not prevent the deafening sound created by takeoffs and landings. The Veteran also questioned how he could be service-connected for right ear hearing loss, but not for his left-ear hearing loss. In declining to reopen the Veteran's previously denied claim, the RO, in its May 2007 decision, found that new and material evidence had not been submitted, as none of the evidence submitted since the July 2003 denial of service connection related the Veteran's hearing loss to service. Evidence added to the claims folder since the May 2007 RO decision includes the Veteran's petition to reopen his previously and finally denied claim; VA treatment records; private medical records; an April 2011 VA audiology examination report; an informal conference report; articles pertaining to a 1958 blimp crash; and lay statements from the Veteran and his spouse. At the outset, the Board notes that the article pertaining to the 1958 blimp crash was submitted in support of a claim for service connection for a back disability and an August 2012 VA examination was conducted in connection with that claim, the report of which is of record. In support of his petition to reopen his previously denied claim for left ear hearing loss, the Veteran stated that he had noticed a rapid decline in his hearing acuity. He proffered his belief that his hearing loss was due to noise exposure in service from working in close proximity to aircraft engines. He reiterated this belief in a January 2011 statement in support of his claim and made similar arguments in his December 2011 VA Form 9 (Appeal to the Board of Veterans' Appeals). Also in December 2011, the Veteran's spouse submitted a statement wherein she noted that the Veteran's hearing had became increasingly worse during their 55 years of marriage. A review of the medical evidence shows that that the Veteran has a left ear hearing loss disability for VA purposes and that the Veteran was seeking new hearing aids. A head computed tomography (CT) scan was performed in September 2010, the results of which showed no structural or anatomic abnormalities, no abnormal osteolysis to suggest otospongiosis, and no evidence of inflammatory mastoid, middle ear cavity, or paranasal sinus disease. An October 2010 magnetic resonance imaging (MRI) report showed no evidence of an internal auditory canal lesion and the mastoid air cells were unremarkable. None of the private or VA medical evidence submitted since the May 2007 RO decision contains an indication that the Veteran's left ear hearing loss is either related to service or manifested to a compensable degree within a year of separation from service. The Veteran was afforded a VA audiology examination in April 2011 in connection with his claim for an increased evaluation for his service-connected right ear hearing loss. Audiometric testing revealed a mild to severe sensorineural hearing loss in the left ear. As the purpose of the examination was not to determine the etiology of the Veteran's left ear hearing loss, the VA audiologist did not comment on the likelihood that the Veteran's left ear hearing loss was related to service. Based on the above review, the Board finds that the evidence submitted since the May 2007 RO decision does not constitute new and material evidence. Although the evidence is new because it was not previously before VA decision makers, it is either cumulative of evidence of record before the RO in May 2007 or not relevant to the issue of service connection for left ear hearing loss. The Veteran had previously reported the nature of his in-service acoustic trauma and asserted his belief that his left ear hearing loss was related to his in-service noise exposure from jet engines. The RO determined, however, that the evidence failed to show that the Veteran's claimed left ear hearing loss had its onset in service. The prior evidence also contained a diagnosis of left ear hearing loss for VA purposes and showed treatment for that condition. Thus, the newly submitted evidence showing diagnoses of and treatment related to left ear hearing loss is merely cumulative of the previously submitted evidence. Further, the medical evidence submitted since May 2007 does not pertain to whether the Veteran's left ear hearing was incurred in or related to his period of active military service. The new medical records are silent as to etiology or onset of the Veteran's left ear hearing loss. Further, the August 2012 VA examination reports pertain to a condition other than the Veteran's left ear hearing loss, the blimp article was submitted in support of his back claim, and the informal conference report merely addresses the Veteran's desire for a hearing. Thus, this evidence is not material evidence with regard his claim for service connection for left ear hearing loss. In sum, the new evidence is cumulative and redundant of previously submitted evidence and therefore does not relate to an unestablished fact necessary to substantiate the claim of service connection for left ear hearing loss, and it does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received. Thus, the petition to reopen the claim of service connection for left ear hearing loss must be denied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence to reopen a claim of service connection for left ear hearing loss has not been received, the claim to reopen is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs