Citation Nr: 1322408 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 08-32 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence was received to reopen service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for loss of balance, claimed as secondary to bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from June 1953 to June 1955. These matters come before the Board of Veterans' Appeals (BVA or Board) from a January 2008 RO decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This case was previously before the Board in October 2010 and July 2012 and was remanded for additional development. The Veteran was scheduled to appear for a personal hearing before a Decision Review Officer (DRO) on January 27, 2009. The Veteran requested that the hearing be rescheduled. It was rescheduled for March 31, 2009. The Veteran did not appear for said hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). 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. In an unappealed rating decision dated in January 2005, service connection for bilateral hearing loss was denied on the basis that there was no evidence that the onset of the Veteran's occurred in service or was otherwise etiologically related thereto. 2. In an unappealed rating decision dated in January 2005, service connection for loss of balance was denied on the basis that there was no evidence that the onset of the Veteran's loss of balance disorder occurred in service or was otherwise etiologically related thereto or to a service connected disability. 3. In an unappealed rating decision dated in January 2005, service connection for left foot disorder was denied on the basis that the Veteran's bilateral pes planus preexisted his active service, and that there was no evidence that the preexisting disorder was aggravated by service. 4. Evidence received subsequent to the January 2005 RO decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for bilateral hearing loss, loss of balance, or a left foot disorder. CONCLUSIONS OF LAW 1. The January 2005 RO decision which denied the Veteran's application to reopen a claim of entitlement to service connection for bilateral hearing loss, loss of balance, and a left foot disorder, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the January 2005 RO decision is not new and material, and the Veteran's claim of entitlement to service connection for bilateral hearing loss, loss of balance, and a left foot disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in October 2007, March 2009, and February 2013 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The March 2009 VCAA letter contained the information required by Kent v. Nicholson, 20 Vet. App. 1 (2006), regarding reopening new and material claims. That letter identified the reasons and bases for the denial of each claimed disability. Complete VCAA notice was not completed prior to the initial AOJ adjudication of the claim. Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claims such that the essential fairness of the adjudication is not affected. Duty to Assist The Veteran's service treatment records and personnel records are associated with the claims file, as are VA medical records and private medical records. No outstanding records have been identified that have not otherwise been obtained. In regard to service connection claims, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In this case, the Veteran's claims are claims to reopen and, therefore, VA's responsibility extends to requesting evidence from any new source identified by the Veteran, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties to the Veteran with respect to that particular claim. VA does not have a duty to provide the Veteran a VA examination if the claim is not reopened. 38 U.S.C. § 5103A(f) (West 2002); 38 C.F.R. § 3.159(c)(4)(C)(iii) (2012). The Board finds that there has been substantial compliance with its July 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In particular, in a February 2013 letter from the RO the Veteran was notified that he must return the supplied VA Form 21-4142, Authorization and Consent to Release Information (VA Form 21-4142), for any treatment records from the Tricoche Hospital he wished to have VA obtain for him. No VA Form 21-4142 authorizing VA to obtain such records has been submitted. In addition to obtaining treatment records, the February 2013 Board decision requested that the RO attempt to clarify the Veteran's service. To that end, in March 2013 the RO requested the Veteran's personnel records from the National Personnel Records Center (NPRC). Such records were received in April 2013. The Board here observes that the record does not reveal that the Veteran had any service other than his period of active service from June 1953 to June 1955. The personnel records do not reflect any such service, and on a September 2004 VA Form 21-526, Veteran's Application for Compensation or Pension, the Veteran specifically denied that he had any military service, active or otherwise, other than from June 1953 to June 1955. On a May 1983 VA Form 21-2545 (Report of Medical Examination for Disability Evaluation) the Veteran indicated that he worked as a Seaman from 1962 to 1982 for the National Maritime Union. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Laws and Regulations When VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence. 38 C.F.R. § 3.156(c). As noted, in April 2013 the Veteran's personnel records were received and associated with the record subsequent to the January 2005 RO decision. The Board finds that these records are not relevant, as understood by 38 C.F.R. § 3.156(c), as the newly received records simply confirm the Veteran's June 1953 to June 1955 active service dates, the dates of which were not in dispute at the time of the January 2005 RO decision. In general, rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 7105 and 38 C.F.R. § 3.105, a final decision by the RO may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C.A. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once a RO decision becomes final under section 7105, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 C.F.R. § 3.105. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the 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. A January 2005 rating decision denied, in pertinent part, service connection for bilateral hearing loss, loss of balance, and a left foot disorder. The RO concluded that the Veteran had not demonstrated hearing loss disability in service or until years following service, and that there was no evidence relating his hearing loss to his active service. Similar rationale was used in denying the claim for service connection for loss of balance. The claim for service connection for loss of balance on a secondary basis was denied because the underlying disability (hearing loss) was not service connected. As for his left foot disorder, the RO observed that bilateral pes planus preexisted the Veteran's active service, and that there was no evidence showing that the preexisting foot disorder had been aggravated by service. The Veteran did not appeal the January 2005 rating decision, nor did he submit any new and material evidence within a year of the rating decision. See 38 C.F.R. § 3.156(b). The January 2005 rating decision thereby became final. At the time of the January 2005 RO decision, the record included the Veteran's service treatment records. A January 1955 separation examination reflected that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15; there was no audiological testing. A March 1963 private medical record noted right ear disease, with complaints of right ear pain and a decrease in hearing. The record indicated that there had been no previous disease of the ears. Private medical records dated from April 1982 to September 1983 reflected complaints of right ear pain with purulent discharge. Assessment included right otitis media with cholesteatoma. A May 1983 VA medical examination revealed that the Veteran indicated that he had impaired hearing since 1955, accompanied by occasional ear infections, pain, and dizziness. The diagnosis was chronic right ear otitis media. VA audiology examinations dated in May 1983 and June 1983 showed bilateral hearing loss for VA purposes, although the examiners appeared to question the validity of the Veteran's responses to testing. A June 2002 private record indicated that the Veteran underwent right mastoid removal. An April 2004 private record noted bilateral hearing loss. Also of record was an April 1953 service induction examination that noted the Veteran had first degree flat feet, asymptomatic. The January 1955 service separation examination noted pes planus, mild, both feet. A May 1983 VA examination indicates that the Veteran made no complaints related to his feet, and no abnormality of the feet was noted. The Veteran filed a new claim to reopen in August 2007. Evidence received in connection therewith includes a January 1984 private record, which noted that the Veteran was diagnosed with right middle ear cholesteatoma and underwent a right middle ear exploration. A September 1988 private record indicating that the Veteran underwent a right aticotomy with excision of cholesteatoma. November 2007 private audiological records that noted the Veteran's military service along with his assertion of noise exposure at that time as well as a 27 year post-service history of noise exposure. The right ear had profound to moderately severe mixed hearing loss and the left ear had moderate to severe sensorineural hearing loss. Other than in the complaint section of the record, the November 2007 private audiological records did not include any opinion as to the nature and etiology of the Veteran's hearing loss. As for VA records, a July 1988 VA record noted that the Veteran gave a history of tinnitus since 1953 and right ear perforation in 1960. The diagnosis included right ear chronic otitis. A VA audiological examination in June 2011 (undertaken in connection with a claim under the provisions of 38 U.S.C.A. § 1151) noted that the Veteran indicated that he had military noise exposure as an infantryman for two years in Korea. Current hearing loss disability was shown but there was no opinion of etiology and none had been requested. As for the Veteran's feet, a July 1988 VA record noted complaints related to the Veteran's left leg but noted nothing concerning the Veteran's feet. An August 2008 VA record noted that the Veteran complained of left foot pain. The additional medical evidence submitted since January 2005 merely shows that the Veteran has been diagnosed with current hearing loss disability. None of the records address the etiology of the Veteran's hearing loss or suggest that the Veteran's hearing loss disability or a disability manifested by a loss of balance had its onset in service. There also remains no competent medical evidence suggesting that the Veteran's pes planus was aggravated by his military service. The evidence submitted since January 2005 is essentially cumulative of that already of record. The Court has held that "where it can be said that, all things being equal, the evidence being proffered has been fairly considered and that further rearticulation of already corroborated evidence is, indeed, cumulative." Paller v. Principi, 3 Vet. App. 535, 538 (1992). The additional statements to treating providers and written personal statements from the Veteran have repeatedly asserted the same argument, that his current hearing loss and loss of balance are etiologically related to his active service and that his preexisting left foot disorder (pes planus) was aggravated by service. These assertions are essentially cumulative of previously considered contentions. Reemphasizing a position previously considered in the prior final rating decision is not new or sufficient to reopen the claim. 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). Indeed, arguments based on what amounts to the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claims. Accordingly, the evidence received since the denial of the claim in January 2005 is not new and material, and reopening of service connection for the disabilities on appeal is not warranted. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the claim, the appeal is denied. ORDER New and material evidence was not received and, therefore, the request to reopen the claims of entitlement to service connection for bilateral hearing loss, loss of balance, and left foot disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs