Citation Nr: 1313501	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  11-19 108	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss.  

2.  Whether new and material has been received to reopen a claim of entitlement to service connection for a low back disorder.   


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from February 1954 to February 1957.

This appeal to the Board of Veterans' Appeals (Board) is from August and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  The August 2010 rating decision granted service connection the Veteran's bilateral hearing loss and assigned an initial noncompensable disability rating, retroactively effective from May 19, 2010, the date of receipt of his claim.  The more recent October 2010 decision denied reopening his claim of entitlement to service connection for a low back disorder on the basis the evidence he submitted was not new and material.  

As support for his claims, the Veteran testified at a videoconference hearing in March 2013 before the undersigned Veterans Law Judge of the Board.  

Please note 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.  The results of the August 2010 VA audiological evaluation show the Veteran had Level II hearing loss in the right ear and Level III hearing loss in the left ear.

2.  The results of the August 2012 VA audiological evaluation show the Veteran has Level II hearing loss in the right ear and Level I hearing loss in the left ear.  

3.  The RO initially considered - and denied, the Veteran's claim for service connection for a low back disorder in November 1957 because the evidence did not show the Veteran had a then current diagnosis of a back disorder which may be related to his military service. 

4.  The Veteran filed a petition to reopen this claim in May 2010.  However, the additional evidence received since that November 1957 decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012).

2.  The November 1957 rating decision denying service connection for a low back disorder is final and binding on the Veteran based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012).

3.  New and material evidence has not been received to reopen the claim for service connection for a low back disorder.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

Regarding the claim for an initial compensable disability rating for bilateral hearing loss, the appeal arises from the initial award of service connection.  In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, VA's duty to notify in this case has been satisfied with respect to the this claim. 

As for the remaining claim regarding a low back disorder, to reopen a previously denied claim, this VCAA notice must:  (1) notify the Veteran of the evidence and information necessary to reopen the claim (i.e., by describing what is meant by new and material evidence); (2) identify what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial of the claim on the merits; and (3) provide general VCAA notice for the underlying service connection claim that complies with 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and any applicable legal precedent.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  The Veteran was notified of these requirements in June 2010, prior to the October 2010 denial of his petition to reopen.  

Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records through October 2012 have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  

In July 2012, the RO arranged for a VA compensation examination to help determine whether the Veteran's low back disorder is attributable to his military service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The record reflects that the examiner reviewed the claims file including service treatment records and the examiner's description of the circumstances surrounding the Veteran's back injury including the clinical findings noted at that time show that the examiner had knowledge of the relevant facts.  In addition, the examination report shows that the examiner considered the contentions of the Veteran, and supported his medical conclusion with data and a rationale.  For these reasons, the Board finds that the VA examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Veteran was also afforded VA examinations in August 2010 and August 2012 in conjunction with the increased rating on appeal.  The Veteran has not alleged that these examinations are inadequate for rating purposes.  Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected bilateral hearing loss as they include an interview with the Veteran, a review of the record, and a full objective physical examination, addressing the relevant rating criteria and the functional effects of his hearing loss on his daily activities.  Neither the Veteran nor his representative has argued that the Veteran's hearing has worsened in severity since the August 2012 examination or that it was inadequate for rating purposes.  Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary.  

The Veteran has been afforded a hearing before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection and hearing loss claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the hearing, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  

Thus, the Board finds that VA has fully satisfied the duty to notify and to assist.  


II.  Increased Rating

The Veteran's hearing loss is currently rated at 0 percent, effective from May 19, 2010.  The Veteran argues his hearing loss is more severe than this disability rating reflects.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).

Table VII (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect.  38 C.F.R. § 4.85(e).

VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  Each ear will be considered separately.  38 C.F.R. § 4.86(a).  

The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be considered separately.  However, as will be shown below, the audiometric findings do not reflect an exceptional pattern of hearing loss, and the provisions of 38 C.F.R. § 4.86 do not apply.

The Board has reviewed all the evidence in the Veteran's claims file and Virtual VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The relevant evidence of record includes VA treatment records through October 2012, private treatment records, and the reports of the August 2010 and August 2012 VA audiological examinations.  

Prior to establishing his entitlement to service connection for this disability, the Veteran received treatment from the Miracle Ear Center.  A February 2009 private audiogram was in support of his claim for an initial compensable rating.  Based on this audiogram, his puretone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
25
55
60
60
LEFT
35
60
60
65

The average puretone threshold was 50 decibels in the right ear and 55 decibels in the left ear.  Speech recognition ability of 96 percent for the right ear and 64 percent for the left ear was indicated.  

Applying the results of this February 2009 private audiogram to Table VI yields values of Level I hearing for the right ear and Level VI hearing for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss at that time was noncompensable, i.e., 0 percent disabling.  

Thereafter, the Veteran was provided a VA audiological examination in August 2010 in connection with his claim of entitlement to service connection for this disorder.  His puretone thresholds, in decibels, were as follows:






HERTZ


1000
2000
3000
4000
RIGHT
35
55
60
65
LEFT
40
65
65
75

The average puretone threshold was 54 decibels in the right ear and 61 decibels in the left ear.  The examiner notes the initial speech audiometry revealed speech recognition ability of 84 percent for the right and left ears.  However, the best speech recognition ability revealed 88 percent bilaterally.  

Applying the results of that August 2010 examination and using the lower scores of 84 percent for speech recognition, to Table VI yields values of Level II hearing for the right ear and Level III hearing for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss at that time was noncompensable, i.e., 0 percent disabling.  

As for any functional effect of his hearing loss on activities of daily living, this examiner noted the Veteran's reports that he has difficulty hearing speech and understanding family.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  

A September 2011 audiogram, also from Miracle Ear Center, was submitted.  His puretone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
30
55
60
65
LEFT
40
60
65
70

The average puretone threshold was 53 decibels in the right ear and 59 decibels in the left ear.  Speech recognition ability of 88 percent was noted for the right ear and 80 percent for the left.   

Applying the results of this September 2011 private audiogram to Table VI yields values of Level II hearing for the right ear and Level IV hearing for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss at that time was noncompensable, i.e., 0 percent disabling.  

Most recently, the Veteran underwent a VA audiological examination in August 2012 in order to assess the severity of his bilateral hearing loss.  His puretone threshold levels, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
30
55
55
65
LEFT
35
60
60
70

The average puretone threshold was 51 decibels in the right ear and 56 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 84 percent for the right ear, and 92 percent for the left ear.

Applying the results of that August 2012 examination to Table VI yields values of Level II hearing for the right ear and Level I hearing for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss is still noncompensable, i.e., 0 percent disabling. 

The August 2012 VA examiner also indicated the Veteran reports that he has difficulty hearing women and in noisy situations.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  

The Board notes that there are also VA treatment records in the claims file, dated through October 2012, which merely note the Veteran's use of hearing aids.  These records do not contain any additional audiograms which may be used in determining whether the Veteran is entitled to an initial compensable disability rating.  

The Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, and his complaints that he has difficulty hearing.  However, the assignment of disability rating for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination.  As such, the findings of his various audiograms indicating that he has never had higher than a 0 percent disability rating level are more probative than the lay contentions as to the extent of hearing loss.

The Board has also considered whether the Veteran's hearing loss presents an exceptional or unusual disability picture during the period in question as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  While the Veteran reports some impairment due to his hearing loss, the rating schedule contemplates the average impairment in earning capacity as a result of service connected disability.  38 C.F.R. § 4.1.  Here, the rating criteria contemplate varying levels of hearing loss and reasonably describe the Veteran's disability level.  The rating criteria also provide for consideration of greater disability than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

In summary, the most probative evidence of record fails to demonstrate that an initial compensable rating is warranted for the Veteran's service-connected bilateral hearing loss. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 

III.  New and Material Evidence

The RO first considered and denied this claim in a November 1957 rating decision.  The RO denied this claim in that initial decision because there was no evidence of a back disorder on the last examination in October 1957, which was a result of an in-service injury.  

The RO sent the Veteran a letter notifying him of that decision and apprising him of his procedural and appellate rights in the event he elected to appeal.  He did not file a notice of disagreement (NOD), in response, so that decision became final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.

In May 2010, the Veteran filed a petition to reopen this claim of entitlement to service connection for a back disorder.  An October 2010 rating decision denied reopening this claim because there still was no evidence of a current back disorder that is a result of an in-service injury.  Although the RO later reopened the claim in the October 2012 supplemental statement of the case, but denied the claim on the merits, the Board must make the threshold preliminary determination on whether new and material evidence has been submitted.

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 this regard is irrelevant as further consideration of the claim is neither required nor permitted.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).

If, on the other hand, there is new and material evidence, then the claim must be reopened and the former disposition reconsidered.  38 U.S.C.A. § 5108.

When determining whether a claim should be reopened, the Board performs a 
two-step analysis.  The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material."  See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998).  According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers.  "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 cannot be cumulative or 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).

Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom.  Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

In determining whether evidence is new and material, the credibility of the evidence in question is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  This presumption only applies when making a determination as to whether the evidence is new and material.  It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits.  See, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

In Shade v. Shinseki, 24 Vet. App. 110, 116 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  This phrase, "raises a reasonable possibility of substantiating the claim," does not create a third element for new and material evidence but was intended, instead, to provide guidance to VA adjudicators in determining whether submitted evidence meets the new and material requirements.  That is, the Board cannot require the evidence to be new, material, and raise a reasonable possibility of substantiating the claim.  In Shade, the 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 decision makers 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.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.

In the prior final and binding decision from November 1957, the RO denied the Veteran's claim because there was no evidence of a current back disorder that may be related to his in-service motor vehicle accident.  In deciding this claim, the RO noted the Veteran's in-service treatment for a back sprain in August 1954 as a result of a motor vehicle accident, and that history of a back sprain was noted at separation.  However, following service, an October 1957 VA examination revealed a diagnosis of scoliosis, but no evidence of a back sprain.  Additionally, there was no evidence etiologically linking any back disorder to the Veteran's in-service injury.  The scoliosis was noted by the examiner to be a congenital anomaly.  

Since that November 1957 decision, the Veteran has submitted evidence of an injury to his back in 1962 while working as a corrections officer.  Specifically, the Veteran suffered a "wrenched" back when attempting break up a fight between inmates.  Thereafter, the Veteran had lumbar disc surgery in 1970.  He was seen again for back pain in January 1982, at which time he was diagnose with a herniated disc and cervical, thoracic strain.  In November 1995, the Veteran again underwent surgery on his back.  Private treatment records dating from January 1982, indicate the Veteran reported he again injured his back in 1980 while working and reinjured his back in 1981.  A January 2004 private treatment record from Dr. Jones notes low back pain but determined it is "possibly an exacerbation of the workman's compensation back injury."  The Board notes these private treatment records and also the VA treatment records dating from May 2009 to October 2012, show the Veteran has consistently complained of back pain.  However, there are no etiological opinions in these treatment records that establish the Veteran's back pain is due to the in-service motor vehicle accident in 1954, as he is alleging.  In fact, as the January 2004 treatment record from Dr. Jones indicates, his back pain has been attributed to his several injuries following service.  

The Veteran also underwent a VA compensation examination in July 2012, which includes an etiological opinion.  This VA examiner reviewed the claims file and conducted an interview of the Veteran.  The examiner acknowledged the in-service incident.  Further, the Veteran stated his back never returned to its pre-altercation level following the November 1962 injury while working as a corrections officer (which, the Board notes, was reported by the Veteran as occurring in 1967 during this examination).  Further, the Veteran reported he fell at work in the 1980s and jammed his back in a construction zone.  Following a physical examination of the Veteran, the examiner determined that the Veteran's low back disorder was less likely than not incurred in or the result of the claimed in-service injury.  By way of rationale, the examiner stated that the Veteran's back condition is less likely as not permanently aggravated by or the result of the in-service motor vehicle accident, and it did not manifest within one year of discharge.  Instead, it is at least as likely as not that post-service events, including the worker's compensation back conditions and operations for those conditions, permanently altered the natural history of any in-service conditions.  Therefore, the examiner attributed any current back condition to the worker's compensation injuries and the treatment for those disorders.  

In the many years since that November 1957 decision, there has not been any pertinent medical or lay evidence submitted that is new and material, by indicating the Veteran's back disability is a result of the motor vehicle accident in service.  In fact, the evidence establishes the Veteran's current back disorder is the result of injuries sustained following service while working as a corrections officers.  The Veteran also provided written statements and oral testimony in his March 2013 videoconference hearing that his back disorder is the result of the in-service motor vehicle accident, and complaints of and treatment for back disorders since that time.  But in this written and oral testimony, he merely reiterates arguments he made prior to the RO denying his claim in November 1957, namely, that his current back disorder is due to his in-service injury.  So this evidence is not new.  See 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, 315 (1992).  It always has been his contention that he injured his back during service when he was involved in the motor vehicle accident and that he has chronic, meaning permanent, disability as a consequence.  Therefore, merely reasserting this same allegation is not new evidence.

While the additional worker's compensation, private, and VA outpatient treatment records are new in the sense they did not exist at the time of the November 1957 RO decision, as a whole they are not material to the central issue.  Additional evidence which consists of records of post-service treatment that does not indicate that a condition is service-connected, is not new and material.  See Cox v. Brown, 5 Vet. App. 95, 99 (1993); see also Morton v. Principi, 3 Vet. App. 508, 509 (1992) (Observing that evidence of the appellant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service).

As such, none of the additional evidence submitted or otherwise obtained since the prior final and binding November 1957 RO decision addresses this essential element of service connection that was missing when the RO previously considered and denied the claim in that earlier decision.  Thus, there is no new and material evidence to reopen the claim and the petition must be denied.  38 C.F.R. § 3.156.  Furthermore, 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).

ORDER

Entitlement to an initial compensable disability rating for bilateral hearing loss is denied.  

New and material evidence having not been submitted, service connection for a low back disorder is denied.



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



Department of Veterans Affairs