Citation Nr: 1300564	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  09 10-985	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The Veteran served on active duty from July 1980 to July 1984 and from October 1985 to March 1987. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Department of Veterans Affairs Regional Office (RO).


FINDINGS OF FACT

1.  Entitlement to service connection for bilateral hearing loss was denied in March 1998 and January 1999 rating decisions, these rating decisions were not appealed, nor was there new and material evidence submitted during the appeal period.  

2.  Evidence obtained since the time of the March 1998 and January 1999 rating decisions is cumulative and fails to relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss.  


CONCLUSION OF LAW

The March 1998 and January 1999 rating decisions which denied entitlement to service connection for bilateral hearing loss are final; new and material evidence has not been submitted, and the claim is not reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Criteria & Analysis

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

For certain chronic disorders, such as an organic disease of the nervous system including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c) (West 2002).  The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C.A. § 5108, which 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 and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012).

In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

The Veteran's claim of entitlement to service connection for bilateral hearing loss was previously denied by March 1998 and January 1999 rating decisions.  The Veteran did not file a notice of disagreement with the March 1998 and January 1999 rating decisions and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the January 1999 rating decision.  See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the March 1998 and January 1999 rating decisions became final based on the evidence then of record.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012).  

At the time his claim for bilateral hearing loss was denied in March 1998 and January 1999 rating decisions, the evidence of record included service treatment records, including a July 1981 Physical Profile Board Proceeding showing that the Veteran was diagnosed with moderate high frequency hearing loss, as well as a June 1983 Physical Profile Board Proceeding which showed that the Veteran's hearing profile was removed and the Veteran was found to have normal hearing.  Also of record was a private employment audiology report dated in January 1988 which reflected that the Veteran's hearing was essentially within normal limits for employment.  Also of record was a VA audiology examination from September 1998 which showed hearing loss for VA purposes.  See 38 C.F.R. § 3.385. 

The Veteran's claim was denied as the evidence did not show that hearing loss was incurred in or aggravated by military service, nor that hearing loss manifest to a compensable degree within one year from the date of discharge from service. 

In July 2008, the Veteran filed his current claim seeking service connection for bilateral hearing loss.  However, he did not submit any new evidence as to why he believed his bilateral hearing loss should be service connected.  Since that time, VA treatment records have been obtained.  These show the Veteran was assessed with bilateral hearing loss.  However, it was known at the time his claim was previously denied that he had bilateral hearing loss.  The Veteran's VA treatment records, while new, are cumulative, in that they continue to reflect that the Veteran has bilateral hearing loss.  Accordingly, these records are not material, as they fail to raise a reasonable probability of substantiating the Veteran's claim.  Additionally, duplicates of service treatment records have been obtained, which were considered by the RO when initially adjudicating the Veteran's claim.  As such, this evidence is not considered to be new. 

As the evidence added to the claims folder since the Veteran's previous final denial does not raise a reasonable possibility of substantiating the claim, the Board must conclude that the Veteran has not submitted new and material evidence sufficient to warrant the reopening of his claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

In the present case, required notice was provided by a letter dated in July 2008.  This letter specifically informed the Veteran of what "new" and "material" meant in the context of his claim to reopen service connection for his previously denied claim for bilateral hearing loss, and it informed him of the reason that his claim was previously denied.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  Although this letter did not inform the Veteran how disability ratings and effective dates are calculated, (this was accomplished in a January 2009 letter), the Board finds no prejudice to him in proceeding with the issuance of a final decision because the Board concludes that new and material evidence has not been presented to reopen the claim of entitlement to service connection for bilateral hearing loss.  Therefore, any questions as to the appropriate effective dates to be assigned are rendered moot.  

As to the duty to assist the Veteran in the development of his claim, all identified, obtainable, relevant evidence has been associated with the claims file, including the Veteran's service treatment records. Further, though a VA compensation and pension examination was not performed, such an examination is not required unless a previously denied claim for service connection has been reopened. 

VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.


ORDER

New and material evidence having not been presented to reopen a claim of entitlement to service connection for bilateral hearing loss, the Veteran's claim is not reopened, and the appeal is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs