Citation Nr: 1312969 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-06 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In January 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is of record. This matter was previously remanded in May 2010. In October 2011, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to develop and adjudicate the Veteran's request to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss. The action specified in the October 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A February 1996 RO decision initially denied entitlement to service connection for tinnitus; the Veteran did not appeal or submit new and material evidence within one year of the decision. 2. In a March 1998 rating decision, the RO found that new and material evidence had not been received to reopen the claim for service connection for tinnitus. The Veteran did not appeal this determination. 3. Evidence received since the March 1998 RO decision is not new and material and the Veteran's claim cannot be reopened. CONCLUSIONS OF LAW 1. The March 1998 RO decision that denied entitlement to service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received since the March 1998 RO decision, and the Veteran's claim for entitlement to service connection for tinnitus cannot be reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. New and Material The Veteran's original claim for entitlement to service connection for tinnitus was denied in a February 1996 RO decision; the Veteran did not appeal. In January 1997, he submitted a copy of a private audiological examination. However, there was no evidence in this examination regarding the Veteran's tinnitus, and in a March 1998 rating decision, the RO held that new and material had not been presented. The Veteran did not appeal or submit new and material evidence within one year of this decision. In May 2008, the Veteran filed new claim for tinnitus. The RO denied the Veteran's claim, finding that new and material evidence had not been submitted to reopen a previously denied claim. The Veteran appealed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). However, 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers 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). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The RO denied the appellant's prior claim because it found that the Veteran's tinnitus did not have onset in service and was not caused or aggravated by the Veteran's active military service. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's tinnitus is related to his active military service. At the time of the prior decision, the Veteran's service treatment records were reviewed. These records are negative for any complaints of tinnitus during the Veteran's period of active service. However, they do show that in November 1966, the Veteran complained of "plugged" ears after flying in a helicopter. He was diagnosed with aero-otitis and placed on a physical profile that removed him from flight duty and restricted his noise exposure. During his separation examination in January 1968, he complained of difficulty hearing, but did not indicate any problems with tinnitus. An examination of his ears at that time was normal. Post-service, the earliest complaint of tinnitus was made in May 1979 during a VA audiological examination, more than a decade after service. At a November 1995 ENT examination, the Veteran reported his problem with tinnitus had onset in service. Since the February 1996 and March 1998 RO decisions, the Veteran submitted VA treatment records and offered testimony concerning his tinnitus at a May 2008 Decision Review Officer (DRO) hearing and the January 2010 Board videoconference hearing. VA treatment records include a VA ENT Nursing Intake Note in which the examining nurse diagnoses the Veteran with "tinnitus secondary to high-tone sensorineural hearing loss." See VA ENT Nursing Intake Note (August 4, 2009). At both his hearings, the Veteran's testified that his tinnitus had onset in service. This evidence is new, as it was not previously of record. However, it is not material. While the Veteran is competent to testify regarding observable symptomatology such as ringing in his ears, his lay testimony placing the onset of his tinnitus in service is redundant of his previous claims in November 1995 that were of record prior to the March 1998 RO decision and considered then. The VA treatment records are not material because while they show a current diagnosis of tinnitus, they do not relate this current disability to service. Instead, the Veteran's tinnitus has been attributed to his sensorineural hearing loss, which remains a nonservice-connected disability. See, e.g., February 2012 rating decision. The Veteran also continues to submit copies of his service treatment records, which are neither new nor material since they were of record at the time of the original RO decision and do not show any evidence of tinnitus in service. In conclusion, the Veteran has failed to present any competent evidence that establishes a relationship between his current tinnitus and his military service other than repeating his prior lay statements that his tinnitus had onset in service. While the Veteran is adamant that his tinnitus is related to his military service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has tinnitus due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. It does not appear that any the Veteran's treatment providers have related his tinnitus to service in any documentation of record. As new and material evidence has not been received, the Veteran's claim for entitlement to service connection for tinnitus cannot be reopened. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. The letter must also inform the Veteran of the bases of the prior denial. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in May 2008. This letter informed the Veteran of what evidence was required to reopen his previously denied claim for entitlement to service connection for tinnitus and what evidence was required to substantiate a service connection claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was provided an opportunity to set forth his contentions during the May 2008 DRO hearing and the January 2010 videoconference hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. Further, because the Veteran's claim is not being reopened, he is not entitled to a VA examination. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence has not been received, and the petition to reopen the claim for service connection tinnitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs