Citation Nr: 1330397	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  10-13 189	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Whether new and material evidence has been received to reopen service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1997 to August 2001 and January 2003 to May 2004.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln Nebraska.

Before reaching the merits of the claim, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  Therefore, the Board has listed the issue on the title page accordingly.

Pursuant to the Veteran's request, he was scheduled for a local hearing before a Decision Review Officer (DRO) in October 2009 and March 2010.  A March 2010 Report of Contact, via a Form 21-0820, notes the Veteran's representative indicated the Veteran's desire to withdraw the hearing request.  On a March 2010 substantive appeal, via a VA Form 9, the Veteran also noted he did not want a Board hearing.  The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2013).  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

Since issuance of the March 2010 supplemental statement of the case (SSOC), additional VA outpatient treatment records dated from April 2012 to June 2012 were obtained and associated with the file on the "Virtual VA" system.  The Board finds these records are not relevant to the claim on appeal, thus the Board may proceed with review of the claim.


FINDINGS OF FACT

1.  Service connection for bilateral hearing loss was denied in an August 2006 rating decision; and the Veteran was notified of this action and of his appellate rights, but did not file a timely notice of disagreement.

2.  The evidence of record since the August 2006 rating decision, regarding service connection for bilateral hearing loss, does not relate to an unestablished fact necessary to substantive the claim.


CONCLUSIONS OF LAW

1.  The August 2006 rating decision that denied service connection for bilateral hearing loss became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).  

2.  New and material evidence has not been received since the August 2006 rating decision to reopen service connection for bilateral hearing loss.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In an August 2006 rating decision, the RO denied service connection, in pertinent part, for bilateral hearing loss because audiometric findings from a June 2006 VA audiological examination showed the Veteran's hearing as normal for VA purposes.  The Veteran was notified of the August 2006 rating decision and of his appellate rights, but did not file a timely notice of disagreement.  As a result, the Board finds that the rating decision became final for this claim on appeal.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 

A claim that has been previously denied may be reopened if new and material evidence is received with respect to that claim.  If the claim is reopened, it will be reviewed on a de novo (new) basis, with consideration given to all the evidence of record.  38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991).  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.  38 C.F.R. § 3.156(a). 

The evidence that is considered to determine whether new and material evidence has been received is the evidence submitted since the last final denial of the appellant's claim on any basis.  Evans, 9 Vet. App. at 273.  This evidence is presumed credible for the purposes of reopening the appellant's claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995).

New and material evidence can be neither cumulative (new material of the same kind) nor redundant (duplicate) 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); see Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened).  

The evidence of record at the time of the August 2006 rating decision, pertaining to the claim on appeal, included the Veteran's service treatment records, September 2005 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, and June 2006 VA audiological examination report.  

The evidence of record associated with the claims file since the August 2006 rating decision, pertaining to the claim on appeal, includes a December 2009 private audiogram report.  

The Board notes such evidence does not include relevant official service department records, and there was no evidence received prior to the expiration of the appeal period pertaining to this claim.  Therefore, 38 C.F.R. § 3.156(b) and 38 C.F.R. § 3.156(c) are not applicable.  Such evidence was also not previously associated with the claims file and is considered new; however, is not material because does not relate to an unestablished fact necessary to substantiate the claim on appeal.

The December 2009 private audiogram documents the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
25 
25 
20
LEFT
35
35
25
25 
25

These audiogram results were provided in graph form, and the Board has depicted the numerical results from the graph.  See Kelly v. Brown, 7 Vet. App. 471, 474   (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record).  

The Board acknowledges there is some degree of bilateral hearing loss beyond the normal ranges as shown by the 25 and 35 decibels listed above.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).  The Board also notes that while, speech recognition scores were 100 percent in each ear, there is no indication that the Maryland CNC (controlled speech discrimination) word list was used, which is a requirement for a hearing impairment examination for VA purposes.  See 38 C.F.R. § 4.85(a).  

Nevertheless, the Board finds that the December 2009 private audiogram report does not show the Veteran meets the criteria for bilateral hearing loss for VA purposes.  See 38 C.F.R. § 3.385 (2013) (A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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.).  

As a result, these audiometry findings are adverse to the Veteran's claim on appeal and such adverse evidence cannot be used as the basis for reopening.  See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (holding that evidence which is unfavorable to a claimant's case may not 'trigger a reopening' of the claim).  

The Board notes that the issue of whether the Veteran has a current disability of bilateral hearing loss for VA purposes still remains an unestablished fact for this claim on appeal.  The most recent evidence supports the prior finding that the Veteran's hearing, at this time, while not perfect, is within a range of normal and, therefore, he does not have a "disability" for VA purposes at this time.  As a result, the Board finds that the newly received evidence does not relate to an unestablished fact necessary to substantiate the claim on appeal, thus is not new and material and the claim is not reopened.  38 C.F.R. § 3.156(a).  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by a February 2009 letter.  In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA.

VCAA notice must also include the basis for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate the element(s) required to establish service connection that was found insufficient in the previous denial.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied.  See Evans, 9 Vet. App. at 282.  In the February 2009 letter, the Veteran was apprised of the basis for the denial in the prior decision and the information necessary to reopen the claim on appeal.

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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the February 2009 letter included the type of evidence necessary to establish a disability rating and effective date.

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, December 2009 private audiogram report, statements from the Veteran, and June 2006 VA examination report.  The VA examiner reviewed the Veteran's claims file and medical history and recorded pertinent examination findings.  The Board notes that the VA examination report is probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal.  The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

ORDER

New and material evidence has not been received to reopen service connection for bilateral hearing loss; the appeal is denied.    


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs