Citation Nr: 1322380 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 07-07 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, found that new and material evidence had not been received to reopen the claim for service connection for bilateral hearing loss. In February 2008, the Veteran provided testimony during a videoconference hearing before a Veterans Law Judge. A transcript of that hearing is of record. In February 2009, the Board remanded the issue for additional development. Upon return of the issue to the Board, the Veterans Law Judge who conducted the February 2008 hearing was no longer at the Board. The Veteran was offered, and subsequently accepted, another hearing before a current Veterans Law Judge. The videoconference hearing was conducted in December 2011, and a transcript of this hearing is of record. In December 2011, the claim was remanded for additional development. The issues of entitlement to service connection for tinnitus and entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In August 1991, service connection for bilateral hearing loss was denied in an unappealed rating decision; no notice of disagreement or evidence was received within one year after notice of that decision was issued. 2. Evidence received more than one year after the August 1991 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 1991 rating decision that denied the claim for service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. The evidence received since the August 1991 rating decision is not new and material or sufficient to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran 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, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court has held that, in claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided with notice that complies with Kent in an August 2004 and a February 2009 VCAA letter issued prior and subsequent to the initial adjudication of the claim. The February 2009 letter also notified the Veteran of the evidence needed to substantiate a claim for service connection. The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the February 2009 letter. To the extent that the Veteran was not provided with pre-adjudication notice of some of the information required by the VCAA, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Appellants must generally identify "with considerable specificity" (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication. Id.; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). No such allegation or showing of prejudice has been made here. In addition, the Board is unable to discern any prejudice. The August 2004 and February 2009 letters advised the Veteran of the need for new and material evidence, that such evidence must raise a reasonable possibility of substantiating the claim, and that the evidence could not simply be redundant or cumulative of that which had been previously considered. The letters also advised the Veteran of the last final denial of his claim, the reason his prior claim was denied and what kind of evidence was needed in order to substantiate the claim. The February 2009 letter advised him of what he needed to show to satisfy a claim for service connection and how disability ratings and effective dates are determined and assigned. He had the opportunity to submit such evidence before the claim was readjudicated in October 2012 and certified to the Board. Therefore, the Board finds that the Veteran has not been prejudiced by any deficiencies of notice in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). During the December 2011 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). VA has obtained all available records of treatment reported by the Veteran, including service treatment records as well as VA and private medical records. The Veteran reported during the Board hearing that he received a VA hearing examination in May 2004 at the VA clinic in Bakersfield by a specific provider with the initials "WF." In an August 2012 response to a request for this audiogram, the Bakersfield VA Outpatient Clinic stated that a May 2004 audiology examination did not exist. Rather, there was a January 2003 VA audiology note with the results of an audiogram conducted by WF, the provider the Veteran identified at the hearing. When the RO contacted the Veteran regarding the available audiogram, he stated that the audiogram was conducted about nine years ago and the January 2003 audiogram may be the one he had remembered. He stated that he did not need a notice letter regarding the audiogram. A Formal Finding of Unavailability of May 2004 audiological examination from Bakersfield, California, VA medical clinic was issued in August 2012 and a supplement statement of the case explaining all of development regarding the reported audiogram was issued in October 2012. For a finally-denied claim, VA is not required under the VCAA to provide a medical examination unless the claim is first reopened upon receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii). The issue on appeal was previously before the Board in February 2009 and February 2012, when it was remanded for additional development. In accordance with the remand instructions, the Veteran was provided complete VCAA notice regarding his service connection claim, the development described above regarding the reported May 2004 audiology examination was conducted, and a supplemental statement of the case was issued in October 2012. Because the record reflects compliance with the February 2009 and February 2012 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that it has complied with the VCAA's notification and assistance requirements. Claim to Reopen-Bilateral Hearing Loss If a notice of disagreement is not received within one year of the notice of an RO decision, and no new and material evidence is received during that period, the decision will become final. 38 U.S.C.A. § 7105(b)-(c) (West 2002). Generally, a claim which has been finally 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). If, however, 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. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection bilateral hearing loss was initially denied in an August 1991 rating decision on the basis that the evidence did not demonstrate that the Veteran had a bilateral hearing loss disability during service or thereafter. Notice of that decision was sent, along with notice of the appellate rights and procedures in September 1991. The Veteran did not submit a notice of disagreement within one year; nor was any additional, relevant evidence received during that period. Therefore, the decision on the claim became final. 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c) (2012)). The evidence of record at the time of the August 1991 decision included the Veteran's service medical records, which were negative for a hearing loss disability despite multiple audiograms, or any complaints of acoustic trauma. Also of record was a July 1991 VA examination where the Veteran reported acoustic trauma from tools used and being near a runway during service but his hearing was within normal limits bilaterally. The RO denied the claim for service connection for bilateral hearing loss as the Veteran did not have a current disability nor was a hearing loss disability demonstrated during service. 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2012). Since the August 2006 rating decision, duplicate service treatment records were provided and VA and private treatment records have been obtained; however, the records simply do not demonstrate a current bilateral hearing loss disability. The January 2003 audiology note indicated that hearing was within normal limits between 250 to 4000 Hertz bilaterally, with no air/bone gaps present, and a good word recognition ability. A September 2009 letter from a private audiologist was also submitted. In the letter, the audiologist describes the in-service noise exposure reported by the Veteran but stated that an audiologic evaluation revealed hearing within normal limits bilaterally between 250 and 4000 Hertz. The Veteran's newly submitted statements offered contentions which were also previously considered; namely that he experienced acoustic trauma during his service doing construction and carpentry, from weapons fire during training, and from being near a runway. He also submitted evidence pertaining to the severity of the kinds of noise exposure which may be experienced by those in the construction field. The Board recognizes and accepts the Veteran's reports that he experienced significant noise exposure during service; however, he must first have a current disability under 38 C.F.R. § 3.385 in order to be service connected for hearing loss. The new evidence fails to show that the Veteran has a current bilateral hearing loss disability under 38 C.F.R. § 3.385 or had such a disability during service. It does not raise a reasonable possibility of substantiating the claim and would not trigger VA's duty to get an examination. Shade v. Shinseki, 24 Vet. App. 110 (2010); see 38 U.S.C.A. § 5103A(d) (West 2002) (VA's duty to provide an examination in a service connection claim is triggered when there is competent evidence of a current disability and that it might be related to service, but the evidence is insufficient to decide the claim). Therefore, the new evidence does not raise a reasonable possibility of substantiating the claim. As such, the evidence is not material and the claim to reopen must be denied. ORDER New and material evidence having not been received, the claim for entitlement to service connection for bilateral hearing loss is not reopened and the appeal is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs