Citation Nr: 1330206 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-10 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether there is new and material evidence to reopen a previously denied claim for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active military service from January 1959 to February 1967. This appeal to the Board of Veterans' Appeals (Board) is from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO, in pertinent part, reopened the claim for service connection for bilateral hearing loss, because it was determined there was new and material evidence, but then ultimately denied this claim on its underlying merits (i.e., on a de novo basis). Regarding the RO's decision to reopen the claim for bilateral hearing loss, so, too, must the Board make this threshold preliminary determination of whether there is new and material evidence concerning this claim, irrespective of what the RO determined, because this initial determination affects the Board's jurisdiction to proceed further and adjudicate this claim on its underlying merits. If there is not new and material evidence concerning this claim that is where the analysis must end, regardless of what the RO concluded, because further Board analysis of this claim is neither required nor permitted. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92 (March 4, 1992). Conversely, if there is new and material evidence, the Board must reopen this claim, like the RO did, and review its former disposition. 38 U.S.C.A. § 5108 (West 2002). For reasons and bases that will be discussed, the Board disagrees with the RO's determination that there is new and material evidence to reopen the claim for bilateral hearing loss. The RO also denied service connection for tinnitus in May 2010. In February 2013, the RO granted service connection tinnitus. Since the Veteran did not, in response, appeal either the rating or effective date assigned for that disability it is no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and the effective date). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. In an unappealed January 2004 rating decision, the RO initially considered and denied the Veteran's claim for service connection for hearing loss. 2. The additional evidence received or otherwise obtained since that January 2004 rating decision is cumulative or redundant of evidence already considered in that decision or does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. Since not appealed, the RO's January 2004 decision initially considering and denying the Veteran's claim for service connection for hearing loss is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). 2. Since the January 2004 decision denying the Veteran's claim for service connection for hearing loss, there is no new and material evidence to reopen his claim for service connection for hearing loss. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 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). Upon receipt of a complete or substantially complete application for benefits, 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 obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must both notify a claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. To satisfy this requirement, VA adjudicators are required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial. VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). Here, a letter was sent in October 2009, prior to initially adjudicating the Veteran's claims in the May 2010 decision at issue, so in the preferred sequence. The letter complied with the holding in Kent v. Nicholson, 20 Vet App 1 (2006), in that it included discussion of the requirements for reopening a previously denied and unappealed claim, contained information concerning specifically why the claim was previously denied, and cited the criteria for establishing his underlying entitlement to service connection. So he has received all required VCAA notice, and there is no pleading or contention that he has not. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice errors, even if shown to exist, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of the claim). Similarly, VA also has satisfied its duty to assist him with this claim by obtaining all potentially relevant evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all records that he and his representative identified as possibly pertinent to the claim. He also had VA compensation examination, that included a request for a medical nexus opinion concerning the etiology of his hearing loss, especially in terms of whether it was aggravated by his military service, such as on account of his noise exposure in service, which he cites as sources of concern. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). The Veteran therefore has received all required notice and assistance concerning the claim that is being adjudicated in this decision. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Whether There is New and Material Evidence to Reopen the Claim for Hearing Loss The Veteran is requesting service connection for bilateral hearing loss. As already alluded to, however, since this claim has been previously considered and denied in January 2004, and he did not appeal that earlier decision, the Board has to initially determine whether there is new and material evidence to reopen this claim because that prior decision is final and binding on him based on the medical and other evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. See again, also, Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992). If the Board determines there is no new and material evidence, this is where the analysis must end, and what the RO may have determined in this regard is irrelevant as further consideration of the claims is neither required nor permitted. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The RO first considered and denied this claim in January 2004. At the time, the evidence included the Veteran's service treatment records (STRs). The report of a January 1959 hearing evaluation conducted in anticipation of his enlistment into the military shows the Veteran's hearing was normal according to the whispered-voice test at 15 feet. During his January 1967 separation examination, an audiogram revealed puretone thresholds in his right ear at 500, 1000, 2000, 3000, and 4000 Hz of 15, 10, 10, 10, and 20 decibels, respectively and in the left ear 15, 15, 10, 20, and 20, respectively. At the time hearing was measured by audiometric testing using the American Standards Association (ASA) units, which was the standard of measurement of pure tone thresholds by the service departments prior to October 31, 1967. Subsequent to October 31, 1967, and currently, the service departments measure pure tone thresholds using International Standard Organization (ISO) units. For consistency, the pure tone thresholds reported above have been converted to ISO units. A VA examination was conducted in October 2003. At the examination, the pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz were 25, 30, 30, 60, and 95 decibels, respectively; and in the left ear the pure tone thresholds were 20, 25, 25, 55, and 55 decibels, respectively. The VA examiner determined that the hearing loss was unrelated to military. In providing the rationale, the audiologist pointed out that the Veteran's hearing was normal at the time of his separation from military service. For the same reasons the RO denied his claim for service connection. The RO notified the Veteran of that decision denying his claim later in February 2004 and apprised him of his procedural and appellate rights, but he did not appeal. Consequently, in the absence of an appeal, that initial January 2004 decision denying hearing loss is final and binding on the Veteran based on the evidence then of record. See 38 U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. So, to reopen the Veteran's claim and warrant review of the prior disposition concerning it, there has to be new and material evidence concerning this claim. See 38 U.S.C.A. § 5108. The Board has considered the potential applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Here, though, the only statement or evidence received after notification of that decision was a March 2004 letter disagreeing with the denial of a heart disorder. Thus, this regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of that earlier appeal period, that is, during the one-year period following the decision initially considering and denying the claim. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999). He filed his current petition to reopen this claim on September 23, 2009. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means 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 cannot be cumulative or 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. See 38 C.F.R. § 3.156(a). Second, if VA determines that the evidence is new and material, VA may then evaluate the merits of the claim on the basis of all evidence of record (i.e., conduct a de novo review), but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). The second step is applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The evidence that must be considered in determining whether there is a basis for reopening this claim is the evidence that has been added to the record since the most recent final and binding RO decision, regardless of the specific basis of that denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). So, here, the RO's January 2004 decision marks the starting point for determining whether there is new and material evidence. Since that January 2004 decision, the Veteran has submitted written statements. He also has undergone additional VA treatment and compensation examination, although this time specifically concerning his claim for hearing loss. In regard to his written statements, the Veteran continues to maintain he has hearing loss related to military service. However, he made this same allegation before the RO initially considered and denied this claim in January 2004. So, even when initially considering and denying this claim in January 2004, there was recognition and acknowledgment of his personal belief that he has hearing loss and that it is a result of his military service. Thus, merely reiterating this allegation is not new evidence. 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). In his initial June 2003 claim application (VA Form 21-526), the Veteran simply attributed his hearing loss to military service. The RO's subsequent January 2004 decision noted his military service as well as the diagnosis of bilateral hearing loss, so it readily conceded he had hearing loss. So there is no disputing that the Veteran had bilateral hearing loss. Nevertheless, as explained to him in his Kent notice, there still has to be some competent and credible indication that his hearing loss is related to military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Hence, in trying to reopen this claim for hearing loss, there first necessarily needs to be some additional evidence since the RO's January 2004 decision establishing that the Veteran's hearing loss is attributable to his military service. 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 considering the additional VA examination and outpatient reports, they mostly only show that the Veteran continues to receive audiologic treatment for his hearing loss. Merely showing additional evaluation and treatment of the Veteran's hearing loss is insufficient reason to reopen his claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, does not constitute new and material evidence). See also Cox v. Brown, 5 Vet. App. 95, 99 (1993) and Morton v. Principi, 3 Vet. App. 508, 509 (1992). Moreover, in a May 2010 VA examination report, the examiner specifically opined that the Veteran's hearing loss was not caused by military service and again reiterated that his hearing was normal at service discharge. Accordingly, the evidence does not establish a fact necessary to substantiate the claim, and the claim for service connection for bilateral hearing loss cannot be reopened on the basis of that evidence. 38 C.F.R. § 3.156(a). In sum, none of the additional evidence since the prior final and binding decision in January 2004 addresses the element of service connection that was missing in that prior denial of the claim, competent evidence showing that the Veteran's hearing loss was related to military service. Thus, there is no new and material evidence to reopen this claim for bilateral hearing loss, and the petition must be denied. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The petition to reopen the claim for service connection for bilateral hearing loss is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs