Citation Nr: 1322763 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-05 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from August 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky, which denied reopening the claim for service connection for tinnitus. As part of his March 2011 VA Form 9, the Veteran requested to be afforded a hearing to be conducted by a Veterans Law Judge. He later withdrew his request for a hearing in September 2011. FINDINGS OF FACT 1. In a July 2008 rating decision, the RO denied service connection for tinnitus. The Veteran did not appeal the decision and the determination is now final. 2. Evidence submitted since the RO's July 2008 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for tinnitus. CONCLUSION OF LAW Evidence received since July 2008 rating decision is not new and material and the criteria to reopen the previously denied claim for service connection for tinnitus are not met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Where a Veteran seeks to reopen a previously denied claim, the notice must inform the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran received appropriate notice in the October 2010 letter. The Veteran's available service treatment records and VA medical treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran was afforded a VA examination in February 2011; however, given the Board's decision within, any question of the adequacy of that examination becomes moot. Woehlaert v. Nicholson 21 Vet. App. 456 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In a July 2008 rating decision, the RO denied service connection for tinnitus as there was no evidence the Veteran's tinnitus was incurred in or caused by service. Evidence considered at that time consisted of the Veteran's service treatment records, his statements, VA treatment records, the report of a May 2008 VA examination and a statement from the Veteran's private physician, Dr. PC. The Veteran was notified of the decision and his appellate rights, but did not file an appeal. In October 2010, the Veteran filed to reopen his claim for service connection for tinnitus. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define "new" evidence as existing evidence not previously submitted to agency decisionmakers. "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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The claim was previously denied because there was no evidence that tinnitus was incurred in or caused by service. Evidence received since the July 2008 RO decision consists of VA treatment records and the report of a February 2011 VA audio examination. The VA outpatient treatment records include one dated in September 2010, wherein it was reported that the Veteran requested to be evaluated for the "sudden onset" of tinnitus. An October 2010 VA audio consult outpatient report shows that the Veteran complained of worsening tinnitus symptoms since his May 2008 VA evaluation. The report of a VA audio examination, conducted in February 2011 by the same audiologist who conducted the May 2008 VA examination, shows that the examiner reviewed the Veteran's medical history. To this, complaints of tinnitus were noted to have been first shown in March 2008, at which time the Veteran noted an onset of many years ago. The examiner opined that the Veteran's tinnitus was not caused or the result of his military service. The opinion was noted to be supported by the May 2008 VA findings in which the Veteran indicated that the onset occurred only a few years prior. The examiner added that there were no reports of tinnitus in the Veteran's service treatment records. She added that many factors are noted to cause tinnitus, such as the taking of certain medications, fatigue, stress, caffeine, nicotine use, etc. The examiner concluded by stating that due to the Veteran's inability to confirm a cause or exact onset date of his tinnitus, and with no evidence supporting a finding of tinnitus in his military records, she stood by her earlier provided opinion. The VA treatment records and February 2011 VA examination report were made part of the record subsequent to the RO's July 2008 denial of the claim and are thus new. These records, however, are cumulative and do not include any evidence relating to an unestablished fact; that is, there is no evidence relating the Veteran's current tinnitus to his active military service. Thus, the medical records are not material evidence. The evidence received since the July 2008 final decision is not new and material, does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Reopening the claim is not warranted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. ORDER New and material evidence has not been received and the petition to reopen a claim for service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs