Citation Nr: 1323974 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-07 118A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from April 1984 to April 2004. This matter is before the Board of Veterans' Appeals (Board) from a July 2007 rating decision promulgated by the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). On a March 2009 VA Form 9, the Veteran indicated that he desired to appear for a Board hearing; however, received at the RO in May 2009 was a form which indicated the Veteran wanted a hearing at the RO rather than a Board hearing. An informal conference was held with a hearing officer in March 2010. The informal conference report indicates that the Veteran was informed he had to show hearing loss for VA purposes to make his claim and that the agreed upon action was that he would be scheduled for a VA audiogram. The Veteran's representative indicated on an August 2012 document that the Veteran desired a Board hearing. The RO attempted to clarify the hearing request in March 2013; the Veteran's representative only reiterated the issue in response. Consequently, the Board sent the Veteran a letter in June 2013 asking for clarification. The Veteran did not reply within the 30 days provided by the letter. Thus, the Board will consider the Board hearing request withdrawn. FINDINGS OF FACT 1. By a January 2005 rating decision, the RO denied a claim of service connection for hearing loss; the Veteran was notified of the denial, but did not appeal. 2. The evidence received since the January 2005 rating decision does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A January 2005 rating decision denying a claim of service connection for hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2013); 38 C.F.R. § 20.200, 20.201, 20.302 (2012). 2. The evidence presented since the January 2005 rating decision is not new and material, and the claim for service connection for hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the Veteran was sent a letter in November 2008 that fully addressed all notice elements. The letter provided information as to what evidence was required to reopen and substantiate the claim and of the division of responsibilities between VA and a claimant in developing the claim. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a November 2008 communication, with subsequent readjudication of the claim in December 2008, July 2010 and July 2012. Therefore, the timing deficiency has been cured. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, even though new and material evidence had not submitted, the Veteran was afforded a VA examination in April 2007 and July 2010. The Veteran was additionally scheduled for an examination in March 2012, to which he did not appear. The Board notes that a February 2012 notice letter from the RO indicated that the Veteran would be scheduled for an additional VA examination. Also, a July 2012 supplemental statement of the case indicated that the Veteran did not report to the VA examination and that there was still no indication in the record of disabling hearing loss. The Board notes that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that the case should be considered on the available record as he did not report to his most recently scheduled examination with no explanation was provided. 38 C.F.R. § 3.655(b) (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has reviewed the record and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). New and Material Evidence A January 2005 rating decision denied a claim of service connection for hearing loss. The Veteran did not appeal that determination. He subsequently sought to reopen the claim, and the RO denied such request in the July 2007 rating action that is the subject of the instant appeal. An unappealed decision by the RO or a decision of the Board is final. 38 U.S.C.A. §§ 7104(b), 7105. The claim may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers, which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is 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 which raises 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 submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When the claim was originally denied in January 2005, the RO determined that evidence had not been presented to show that the Veteran had a current disability of impaired hearing by VA standards. 38 C.F.R. § 3.385 (2004). The evidence of record at the time of the January 2005 decision included service treatment records, VA examination reports and the Veteran's statements. The pertinent evidence added to the record since the January 2005 rating decision consists of post-service treatment records and VA examination reports, an informal conference report and the Veteran's contentions. More specifically, the Veteran was afforded an April 2007 VA audiological examination. Under VA regulation, impaired hearing will be considered to be a disability for which service connection may be granted when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The findings on VA examination did not meet those requirements. The Veteran's VA treatment records indicate notations of hearing loss based on the Veteran's history; however, there are no audiological findings consistent with a hearing loss disability for VA purposes. The Veteran was afforded another VA audiological examination in July 2010. The examiner indicated that the Veteran's responses were invalid as evidenced by inconsistencies in speech to tonal stimuli and presentation method responses. Thus, the examiner did not record the results as the examination results were invalid. The examiner indicated that the Veteran was able to identify phonetically balanced words at the conversational level at a 100 percent rate. The Veteran was scheduled for yet another VA examination in March 2012. As indicated in the introduction, the Veteran failed to report to the examination without excuse or explanation. None of the objective evidence received since the last final rating decision includes audiological results indicating that the Veteran has hearing loss by VA standards. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the Veteran's claim and does not raise a reasonable possibility of substantiating his claim. Therefore, the Board finds that new and material evidence has not been received to reopen the claim for service connection for hearing loss. ORDER New and material evidence having not been received to reopen the claim of entitlement to service connection for hearing loss, the application to reopen is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs