Citation Nr: 1317795 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 08-09 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In June 2007, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the appellant's claims folder. This case was previously before the Board and remanded for additional development in October 2011. The reopened issue of entitlement to service connection for posttraumatic stress disorder (PTSD) and the issue of entitlement to service connection for tinnitus were also remanded. In October 2011 and March 2012 rating decisions, the VA Appeals Management Center (AMC) granted service connection for PTSD and tinnitus respectively. As those claims were granted in full, they are not currently before the Board. FINDINGS OF FACT 1. A January 1973 rating decision denied the appellant's claim for entitlement to service connection for bilateral hearing loss; the appellant did not file a timely notice of disagreement with the January 1973 rating decision. 2. A May 1997 rating decision denied the appellant's petition to reopen the claim for entitlement to service connection for PTSD; the appellant did not file a timely notice of disagreement with the May 1997 rating decision. 3. Evidence received subsequent to the May 1997 rating decision is new, but is not material, as it does not raise a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The January 1973 and May 1997 rating decisions are final as to the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has not been received since the May 1997 rating decision to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 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). II. Notice and Assistance With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. Prior to initial adjudication of the appellant's claim, a VCAA notice letter was issued in August 2004. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. A letter addressing the assignment of a disability rating and/or effective date, in the event of award of the benefit sought was issued in July 2006. Dingess/Hartman, 19 Vet. App. at 490. Although the July 2006 letter was not received prior to initial adjudication of the claim, the claim was subsequently readjudicated in a March 2008 statement of the case, a July 2008 supplemental statement of the case and a March 2012 supplemental statement of the case. The August 2004 and July 2006 letters provided notice of the elements of new and material evidence and the reason for the original prior denial. However, the August 2004 letter did not provide notice of the reason for the last final denial of the claim in May 1997. Nevertheless, the Board finds that the appellant has not been prejudiced by this notice defect as the record demonstrates he had actual knowledge in this regard. The appellant was provided a copy of the November 2005 rating decision which described the reasons for the prior final denial. Additionally, a statement of the case issued in March 2008 and a supplemental statement of the case issued in July 2008 outlined the same information. Moreover, statements on appeal from the appellant and his representative, including at a March 2006 notice of disagreement where the appellant provided specific arguments relating to why he believed there was a nexus between the hearing loss and service, reflect the appellant's understanding in this regard. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The Agency of Original Jurisdiction (AOJ) attempted to obtain the appellant's Social Security Administration records, but received a response from the Social Security Administration indicating the records were destroyed. Moreover, the appellant reported that he was receiving benefits from Social Security Administration due to his PTSD. See January 2012 report of contact. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The RO provided an examination to the appellant in December 2011. The Court has held that the Board is not required to reopen a previously denied claim solely because the appellant was afforded a VA examination in connection with his petition to reopen. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007). Furthermore, the Court has also held that, where the Board has denied reopening, the adequacy of an examination provided by the RO, despite no obligation to do so, is not a viable issue on appeal. See id., at 461. As discussed below, the Board concludes that new and material evidence has not been received on this claim. No duty to assist examination provisions could have been violated. See id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). III. Legal Criteria New and Material In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as 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 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. 110, 120 (2012). Service Connection Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, such as hearing loss, as an organic disease of the nervous system, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. III. Analysis The appellant contends that he has bilateral hearing loss as a result of exposure to loud noise in service. For the reasons that follow, the Board finds that new and material evidence has not been received to reopen the appellant's claim. The appellant filed a claim for entitlement to service connection for bilateral hearing loss in November 1972. In a January 1973 rating decision, the RO denied the appellant's claim for service connection for deafness. The RO noted that a pre-induction physical examination in February 1969 reported pure tone thresholds in the conversational ranges within normal limits and in the 4000 cycle per second range 45 decibels in each ear. A separation physical showed hearing reported as 15/15 bilaterally and an audiogram was within normal limits except for the right ear at 30 and the left ear at 40 in the 4000 range. The appellant did not file a notice of disagreement with the rating decision within one year, and the decision became final. 38 U.S.C.A. § 7105. In November 1996, the appellant filed a claim to reopen his claim for service connection for bilateral hearing loss. A May 1997 rating decision denied the appellant's request to reopen his claim for entitlement to service connection for bilateral hearing loss. The RO noted that VA examination findings showed that the appellant had some sensory neural high tone deafness. The RO further noted that the new evidence was negative regarding the issue of incurrence or aggravation of a hearing loss condition in service. The appellant did not file a notice of disagreement with the rating decision within one year, and the decision became final. 38 U.S.C.A. § 7105. The evidence of record at the time of the previous final denial included the appellant's service treatment records, statements from the appellant, VA treatment records and October 1972 and May 1997 VA audiological test results. The October 1972 audiological test indicated the appellant had pure tone thresholds of 50 decibels in the right ear at 400 Hertz and of 60 decibels in the left ear at 4000 Hertz. The May 1997 VA audiological test indicated the appellant had puretone thresholds in the right ear of 15, 20, 25, 60 and 55 decibels and in the left ear of 15, 15, 25, 70, and 70 decibels at 50, 1000, 2000, 3000 and 4000 Hertz respectively. The VA audiological test results of record at the time of the last final denial therefore indicated the appellant had bilateral hearing loss as defined under 38 U.S.C.A. § 3.385. The evidence added to the record subsequent to the last final denial includes additional statements from the appellant, VA treatment records, and a December 2011 VA examination. The appellant's VA treatment records reflect that the appellant has bilateral hearing loss and wears hearing aids. See e.g. September 2001 and June 2009 VA treatment records. Although the records indicate the appellant has bilateral hearing loss, as noted above, evidence that the appellant had a bilateral hearing loss disability was already of record at the time of the last final denial in May 1997. None of the VA treatment records indicate that the appellant's bilateral hearing loss was related to or aggravated by active service. Thus, although the VA treatment records are new, they do not raise a reasonable possibility of substantiating the claim and are not material. The appellant was afforded a VA examination in December 2011. As the VA examination post-dates the previous final denial, it is new. However, the Board finds that the VA examination is not material. The VA examiner found the appellant had sensorineural hearing loss in both ears in the range of 500 to 4000 Hertz. The VA examiner found that the appellant's hearing loss preexisted service. The VA examiner stated that the appellant's pre-induction physical dated February 1969 revealed a moderate high frequency hearing loss at 4000 Hertz bilaterally. The hearing at 500 Hertz, 1000 Hertz and 2000 Hertz was within normal limits. His exit hearing exam dated in October 1971 revealed that there was no significant downward shift in hearing at any of the test frequencies in either ear. Therefore, the VA examiner opined that the appellant's military service did not appear to aggravate his pre-existing condition. The Board notes that there appears to be a typo in the opinion. The VA examiner checked "yes" in response to the question "was the pre-existing hearing loss aggravated beyond normal progression in military service." However, in the rationale to the opinion, the VA examiner clearly stated that service did not aggravate the appellant's pre-existing hearing loss and her rationale supported this conclusion. Consequently, the Board finds that the VA examiner found the appellant's hearing loss was not aggravated by service. The VA examiner also found that the appellant's hearing loss was not at least as likely as not caused by or a result of an event in military service. As the December 2011 VA examiner found that the appellant's hearing loss was not related to or aggravated by service, the VA examination does not raise a reasonable possibility of substantiating the claim and does not constitute new and material evidence. The appellant has asserted that he has hearing loss as a result of exposure to loud noise in service. In a March 2007 notice of disagreement, the appellant stated that ear protection was not required, nor give out, nor to his knowledge was it available. He stated that he was constantly around equipment, including fork lifts, tractor and trailers. The evidence received subsequent to the last final decision in this case is presumed credible for the purpose of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, although a lay person may be competent to report the etiology of a disability, bilateral hearing loss is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, although the appellant is competent to report symptoms of relating to hearing loss, the appellant had previously asserted that he had bilateral hearing loss as a result of service at the time of the last final denial in May 1997. Therefore, his statements do not constitute new and material evidence to warrant reopening of his claim for service connection for hearing loss. After a review of the evidence submitted by the appellant and added to the file since the May 1997 rating decision, the Board finds that it does not raise a reasonable possibility of substantiating the claim. The appellant's service treatment records reflect that the appellant had hearing loss at the time of his induction into service. The new evidence, as described above, does not indicate that the appellant has bilateral hearing loss that was aggravated beyond normal progression by service. In the absence of evidence that the appellant's bilateral hearing loss was aggravated by active service, the Board concludes that the additional evidence is not new and material and the petition to reopen a claim for service connection is denied. Accordingly, the Board finds that what was missing at the time of the prior final denial remains deficient. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the claim for service connection for bilateral hearing loss is not reopened, and the appeal is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs