Citation Nr: 1336054 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-09 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received sufficient to reopen claims of entitlement to service connection for hearing loss and tinnitus, if so, whether service connection is warranted for the claimed disabilities. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a two June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas that in relevant part denied entitlement to service connection for hearing loss and entitlement to service connection for tinnitus. 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. FINDINGS OF FACT 1. A March 2003 rating decision initially denied the Veteran's claim of entitlement to service connection for hearing loss; the Veteran did not enter a notice of disagreement within one year of notice of this decision, and it became final. 2. A September 2008 rating decision confirmed the initial denial of the Veteran's claim for service connection for hearing loss and initially denied the Veteran's claim of service connection for tinnitus; the Veteran did not enter a notice of disagreement within one year of notice of this decision, and it became final. 3. Evidence received since the September 2008 rating decision is new to the claims file, but is cumulative or redundant and does not relate to an unestablished fact necessary to substantiate the claims of entitlement to service connection for hearing loss based on aggravation and whether tinnitus was incurred during service; combined with VA assistance and considering the other evidence of record, the new evidence does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The September 2008 rating decision, denying the claim of service connection for hearing loss and tinnitus, is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has not been submitted for the claims of entitlement to service connection for hearing loss and for tinnitus; the claims are not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a)(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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. See 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), it was provided that notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Additionally, with regard to applications to reopen a previously denied service-connection claim, VA must both 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 that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, the Veteran was provided with a sufficient notification letters in May 2010 and June 2010 that sufficiently addressed both his claim for service connection for hearing loss based on aggravation and for tinnitus, respectively. These letters also fulfilled the Kent and Dingess requirements. With regard to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the claims that has been sufficiently identified has been obtained to the extent possible. The Veteran's service treatment records and VA treatment records have been associated with the claims file. He also has provided lay statements in support of his claims. No additional outstanding medical or lay evidence has been identified. The Veteran was provided with a VA examination with accompanying opinions in June 2003. Thus, there is no duty to obtain yet another VA examination. See 38 C.F.R. §§ 3.327, 4.2 (2013); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (the "mere passage of time" between a prior VA medical examination and the adjudication of a claim is not, in and of itself, sufficient to compel VA to provide a veteran with a new, contemporaneous medical examination). Further, VA is not required to provide a new examination unless new and material evidence had been presented. See 38 U.S.C.A. § 5103A(d)(1); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003) (holding that "in the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion"). For the reasons that will be discussed below, the Board determines that new and material evidence has not been submitted to reopen the Veteran's claim of service connection; accordingly, there is no duty to obtain another VA examination or opinions with regard to the issues on appeal. New and Material Evidence - Legal Criteria In May 2002, the Veteran claimed service connection for hearing loss disability. The claim was denied in a March 2003 rating decision, which found the Veteran's hearing loss disability preexisted service and was not aggravated during service. In January 2008, the Veteran filed a claim to reopen his hearing loss disability claim, and also filed an initial claim for tinnitus disability. The claims were denied in a September 2008 rating decision, which affirmed the March 2003 rating decision on the issue of service connection for hearing loss, and initially denied service connection for tinnitus on the basis that there was no evidence of nexus between the present disability and service. The Veteran was notified of the decision the same month. The Veteran did not respond. The Board concludes that the September 2008 rating decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (2013). Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence"; "new evidence" is evidence not previously submitted to agency decision makers, while "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. The 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. When determining the materiality of evidence, "the Board is precluded from considering the credibility of the newly submitted evidence. Rather, solely for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the U.S. Court of Appeals for Veterans' Claims explained that that 38 C.F.R. § 3.156(a) must be read as creating a low threshold and that it suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117-18. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertinent to the manifestation of the disability prior to, during and subsequent to service. Id. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Accordingly, 'a lasting worsening of the condition'--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Analysis The claim for service connection for tinnitus was denied for lack of a nexus between the current disability and service. To reopen, the new and material evidence must be received showing that the current tinnitus disability is related to service. The claim for service connection for bilateral hearing loss disability was denied for lack of evidence of aggravation during service. To reopen, the new and material evidence must be received showing aggravation of hearing loss during service. In May 2010, the Veteran reported persistent and recurrent tinnitus symptoms, and a worsening of hearing loss after exposure to loud noise in service. No medical opinion or other medical or lay evidence tending to support the Veteran's allegations has been submitted. The Board finds that the contentions advanced by the Veteran, albeit new, are cumulative or redundant and do not relate to an unestablished fact necessary to substantiate the claims of entitlement to service connection for hearing loss based on aggravation and whether tinnitus was incurred during service; this new evidence does not raise a reasonable possibility of substantiating the claims. Accordingly, the Board concludes that reopening is not warranted. See 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus are not reopened. The appeal is denied. ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs