Citation Nr: 1319894 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-01 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1981 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. FINDINGS OF FACT 1. A rating decision in August 2005 denied service connection for tinnitus and bilateral hearing loss; the Veteran was notified of the denial but did not perfect an appeal or submit material evidence within the appeal period. 2. Evidence received since August 2005 is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claims for service connection for tinnitus or bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria to reopen a previously-denied claim of service connection for bilateral hearing loss are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 2. The criteria to reopen a previously-denied claim of service connection for tinnitus are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Complete notice was provided to the Veteran in letters dated in April 2009 and January 2010. The letters advised the Veteran of the elements required to establish entitlement to service connection, including the disability-rating and effective-date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letters also advised the Veteran of elements required to reopen a previously-denied claim and the specific reasons why his previous claims of service connection for bilateral hearing loss and tinnitus had been denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA outpatient treatment records identified by the Veteran have been obtained. There is no indication of record that any additional evidence relevant to the issues decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been afforded an appropriate VA medical examination. As there is no indication that any failure on the part of VA to provide any additional notice or assistance reasonably affects the outcome of this case, any such failure is harmless. Sanders, 129 S.Ct. 1696. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to prevail on the issue of service connection there must generally be medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule 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 evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The language of 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" is "enabling rather than precluding reopening." 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to an element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis The Veteran has alleged that his bilateral hearing loss and tinnitus are related to his military service working around aircraft in the Navy. Because the Veteran's claimed conditions have the same etiological relationship, a common discussion of both bilateral hearing loss and tinnitus shall ensue. A rating decision in August 2005 denied service connection for a bilateral hearing loss and tinnitus. The Veteran did not appeal this decision within the applicable time period. The August 2005 rating decision is now final. 38 C.F.R. § 20.302. The August 2005 rating decision specifically denied service connection for bilateral hearing loss and tinnitus because there was a negative nexus opinion rendered on the Veteran's July 2005 VA examination and no evidence in the Veteran's medical records showing the etiology of his claimed conditions. The evidence of record at the time of the August 2005 rating decision consisted of the following: (1) service treatment records; (2) VA outpatient treatment records; (3) a VA audiological evaluation in July 2005; and (4) lay statements from the Veteran regarding his exposure to acoustic trauma in military service. Evidence received since the August 2005 rating decision includes VA outpatient treatment records showing that the Veteran has a diagnosis of bilateral hearing loss with no discussion of etiology and that he is a candidate for hearing aids based upon his degree of hearing loss. The new evidence received since August 2005 is not "material" in that it does not address the specific reason the claim was previously denied (i.e., there was no showing of etiology between the Veteran's bilateral hearing loss and tinnitus and acoustic trauma sustained in military service). Accordingly, reopening of the claim for service connection for bilateral hearing loss and tinnitus is not warranted. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence having not been received, the request to reopen a claim of service connection for bilateral hearing loss is denied. New and material evidence having not been received, the request to reopen a claim of service connection for tinnitus is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs