Citation Nr: 1333924 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-33 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a compensable rating for a right ear hearing loss disability. 2. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for removal of the left testicle. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that rating decision, the RO, declined to reopen a claim for entitlement to service connection for left testicle removal with erection and fertility problems. The Board has previously denied the claim for service connection for removal of the left testicle on the merits, as reflected in the November 1996 Board decision. Regardless of the actions of the RO, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b). In November 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless and VBMS claims files reveals records that are either duplicative or not pertinent to the issue on appeal. FINDINGS OF FACT 1. At the March 2011 Board hearing, prior to the promulgation of a decision in the appeal of the Veteran's claim for an increased rating for a hearing loss disability, the Board received notification from the appellant that a withdrawal of this appeal is requested. 2. A November 1996 Board decision denied the Veteran's claim of service connection for residuals of removal of the left testicle. 3. Evidence presented since the November 1996 Board decision is duplicative and cumulative and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for an increased rating for a right ear hearing loss disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The November 1996 decision of the Board denying service connection for left testicle orchiectomy is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 3. New and material evidence has not been received to reopen the claim of service connection for left testicle orchiectomy. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Increased Rating Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn his claim for an increased rating for a right ear hearing loss disability at the May 2011 Board hearing on the record, and in writing, and, therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice is commonly referred to VCCA notice as it came out of legislation titled the Veterans Claims Assistance Act of 2000 (VCAA). (Codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA 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. In this case, the RO sent the Veteran a letter dated May 2007 that complied with statutory notice requirements. Therein, the RO notified the Veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. The letter also notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Once a claim is reopened, VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board recognizes that the Veteran has not been afforded a VA examination in connection with this present underlying issue. However, an examination is not necessary if new and material evidence is not received. 38 C.F.R. § 3.159(c)(4)(iii). Such is the case here. The Veteran was afforded a hearing with the Board in May 2011 before a Veterans Law Judge (VLJ). During the hearing, the undersigned informed the appellant that it was incumbent upon him to submit any potentially relevant evidence in his possession in support of his claim. The undersigned questioned the Veteran in such a way as to solicit any potentially relevant evidence that had not already been submitted or obtained. This action provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, supplemented VA's compliance with the VCAA, and complied with 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. New and Material Generally, VA decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether there is new and material evidence is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran contends he is entitled to service connection for residuals of a left testicle orchiectomy, which he claims was performed during his active service. The Veteran's claim of service connection for left testicle orchiectomy was denied by the RO in an August 1990 rating decision. The Veteran perfected an appeal of this decision, and his claim was denied by the Board in a decision in November 1996. At the time of the November 1996 Board decision, the record contained the Veteran's service treatment records and the Veteran's testimony and statements in support of his claim. The Veteran's February 1980 enlistment examination showed "surgical absence left testicle." The Veteran's February 1980 report of medical history notes that the Veteran was hospitalized at age 24 (1974) for removal of an undescended left testicle. The Veteran's service treatment records did not evidence any complaints or treatment for a testicular disorder, or residuals of a removed testicle. In a March 1983 report of medical history at discharge, the Veteran denied having had any operations or having consulted with a physician in the prior five years for anything other than minor illnesses. The record also contained a February 1988 periodic examination report, in which it was noted that the Veteran claimed that his left testicle was removed in 1981 while in service. The record also contained the Veteran's testimony that his left testicle was removed in 1981, during service. After consideration of this evidence, the Board denied the Veteran's claim on the basis that preponderance of the evidence was against any finding that the Veteran's left testicular orchiectomy occurred during service or was aggravated by service. The Board's November 1996 decision is final as the Veteran did not file an appeal. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1100 (2012). As explained, the Veteran's claim of service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted evidence (i.e., since November 1996) raises a reasonable possibility of substantiating the Veteran's claim. The additional evidence submitted by the Veteran since the November 1996 Board decision included his petition to reopen, lay statements, and the Veteran's testimony. The Veteran filed a petition in June 2009, in which he requested that the RO reopen his claim of service connection for status post left testicle removal with erection and fertility problems. The Veteran also submitted a statement from his wife dated in September 2009, in which she stated that she married the Veteran in November 1981 and she knows that "he got hit down below the belt line and they had to do emergency surgery on his and they took out one of his testicles." The Veteran testified before the undersigned Acting Veterans Law Judge in May 2011 and stated that he underwent emergency surgery on March 30, 1981 to remove his left testicle and that he was placed on restrictive duty for five or six months after that surgery. The Veteran further stated that he never underwent any surgery prior to service. The Veteran also submitted a lay statement from K.G., who served alongside the Veteran, in which Mr. G. stated that "[the Veteran] was hospitalized on March 31, 1981. [The Veteran] had testicular surgery on his left testicle causing it to be removed." Mr. G. further stated that he spoke with the physician about the Veteran's condition and the physician informed him that he could not put his testicles back together because "they were all to pieces" and that the Veteran was out of work for five and a half months due to his procedure. Upon review, the evidence now associated with the Veteran's claims file following the November 1996 decision of the Board is not new and material. The Veteran's lay assertions and lay statements regarding the timing of his surgery, i.e. that his testicle was removed during service, have already been considered. Although the statements from the Veteran's wife and Mr. G. had not been available at the time of the November 1996 Board decision, the Board finds that the substance of the statements was of record at the time of the November 1996 Board decision. At that time, the Board considered lay evidence as to whether the Veteran underwent surgery prior to or during service and concluded that the contemporaneous service treatment records were more probative and showed that the Veteran had undergone surgery for removal of the left testicle prior to service. Thus, the assertions of the Veteran, his wife and Mr. G are deemed to be cumulative in nature and duplicative of other evidence of record. 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. Additionally, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Therefore, the evidence received is not new and material. The Veteran has not submitted any probative evidence demonstrating that his left orchiectomy occurred during service or that a pre-existing testicular disorder was aggravated by service. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim of service connection for left testicle orchiectomy has not been presented. ORDER The Veteran's claim for an increased rating for a right ear hearing loss disability is dismissed. As new and material evidence has not been received to reopen the claim of service connection for left testicle orchiectomy, the appeal to this extent is denied. ____________________________________________ GRAIG JACKSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs