Citation Nr: 1331723	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  12-19 479	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Whether there is new and material evidence to reopen a claim of entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	James Brakewood, Agent


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1972 to January 1979.

This appeal to the Board of Veterans' Appeals (Board) is from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
This rating decision determined the Veteran had not submitted new and material evidence and, therefore, denied his petition to reopen his claims of entitlement to service connection for bilateral hearing loss and tinnitus.  It also denied a total disability rating based on individual employability due to a service-connected disability (TDIU).  

The Veteran submitted a Notice of Disagreement in April 2012.  He limited his appeal to the bilateral hearing loss and tinnitus claims.  The RO issued a Statement of the Case in July 2012.  In response, the Veteran's Agent submitted a VA Form 9 in July 2012 which restricted the Veteran's appeal to the tinnitus claim.  Therefore, that is the only claim before the Board.

A review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to the present appeal.


FINDINGS OF FACT

1.  The Veteran filed a claim for service connection for tinnitus in October 2009.  This claim was denied in a January 2010 rating decision.  The Veteran filed a Notice of Disagreement in March 2010.  The RO issued a Statement of the Case in February 2011.  The Veteran did not perfect an appeal of this issue.

2.  Evidence submitted since the January 2010 decision denying the Veteran's claim of service connection for tinnitus is not new.

 


CONCLUSION OF LAW

Evidence received since the January 2010 rating decision that denied service connection for tinnitus, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in September 2011.  This letter advised the Veteran of what evidence was required to substantiate his claims for service connection, and of his and VA's respective duties for obtaining evidence.  This letter also informed him of what constituted new and material evidence.  He was informed that new evidence must be evidence that was submitted to VA for the first time and that material evidence must pertain to the reason the claim was previously denied.  The letter also explained that his claim was previously denied because there was no evidence that his tinnitus was a result of his military service.  Kent v. Nicholson, 20 Vet. App. 1 (2006). 

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs) and reports of post-service medical treatment. 

The Veteran has not been afforded a VA examination to assess the nature and etiology of his tinnitus because no new and material evidence has been submitted that would reopen the claim.  VA's duty to assist the Veteran in the development of his claim is not triggered unless and until a claim is reopened.  See 38 U.S.C.A. § 5103A.  Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet.App. 542 (1996) (holding that unless new and material evidence has been submitted, the duty to assist does not attach); see also Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

Petition to Reopen Claim for Service Connection

In a January 2010 rating decision, the RO denied the Veteran's claim for service connection for tinnitus because there was "no evidence to support this condition was a result of [his] military service."  He did not perfect an appeal of this issue, and the rating decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). 

Under 38 U.S.C.A. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim.  King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence.  See 38 U.S.C.A. § 5108.

New evidence means evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence 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). 

In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed" but only for the limited purpose of determining whether the claim should be reopened.  Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994). 

At the time of the January 2010 denial, the record consisted of the Veteran's STRs and VA treatment records.  The STR's are negative for any complaints, treatment, or diagnosis of tinnitus.  Additionally, the Veteran's November 1978 separation examination reflects no hearing abnormalities.  The VA treatment records are mostly silent on hearing issues, except for a December 2009 record.  The Veteran complained of having tinnitus "since his time in service after a grenade exploded near him," and an audiological evaluation was performed.  

Evidence submitted in the Veteran's current petition to reopen his claim is not new. The Veteran's allegation of having continuous tinnitus since military service is not new - it was previously of record. In substance, medical evidence associated with the Veteran's hearing loss treatment indicates that the Veteran has periodically reported tinnitus - an allegation which was known in January 2010. Moreover, to the extent that medical examiners may have reiterated the Veteran's essential account, their recordation of his allegation does not constitute new evidence as it is based on a previously considered and rejected assertion. Leshore v. Brown, 8 Vet.App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional); see also 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 (1992).

In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

As no new and material evidence has been submitted, the claim for service connection for tinnitus is not reopened.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs