Citation Nr: 1338944 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-24 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for hearing loss and established a non-compensable (zero percent) rating, and also declined to reopen a previously denied claim of service connection for hypertension. The Veteran timely appeal the denial and the grant of the initial rating. A review of the Virtual VA paperless claims processing system was conducted. Virtual VA contains VA treatment records dated subsequent to the last Supplemental Statement of the Case (SSOC) issued in August 2013. This evidence has been reviewed and is deemed duplicative of the evidence already of record. Therefore, there is no prejudice for the Board to proceed. The issue of an initial compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A May 2008 RO rating decision denied the Veteran's claim for entitlement to service connection for hypertension. The Veteran was notified of this decision and of his appellate rights, but did not appeal the decision. 2. Evidence submitted since the May 2008 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The May 2008 rating decision which denied service connection for hypertension is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. The evidence received since the May 2008 rating decision is not new and material, and the claim for service connection for hypertension is not reopened. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a) (West 2012); 38 C.F.R. § 3.159(b) (1) (2013). The Veteran's claim involves the issue of whether new and material evidence has been submitted sufficient to reopen a previously denied claim. The Court of Appeals for Veterans Claims (Court) specifically addressed statutory notice requirements in that context. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided notice in an October 2010 letter that his claim for service connection for hypertension had been previously denied because service treatment records (STRs) do not show any complaint, treatment or diagnosis of hypertension in service and that to reopen the claim, he needed to submit new and material evidence. He was also informed of the meaning of new and material evidence, was told of the evidence needed to substantiate a claim for service connection, and was informed of the steps VA would take in assisting him by obtaining evidence to support his claim. Finally, he was informed of how VA determines a disability rating and an effective date. In the December 2010 rating decision on appeal, the Veteran's claim to reopen for entitlement to service connection for hypertension was denied. Subsequent to the initial denial, additional notice was sent to the Veteran in July 2012 that provided notice regarding the Veteran's claim to reopen for entitlement to service connection for hypertension. This letter provided the same information as the October 2010 letter, but in addition, included that the Veteran's claim had been denied because it did not manifest within the one year presumptive period under 38 C.F.R. 3.307 (2013). Any issues with the October 2010 notice under Kent were cured by the fully complaint July 2012 notice. Although the July 2012 fully compliant notice was accomplished after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the August 2012 Statement of the Case (SOC) and the August 2013 SSOC. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. The otherwise defective notice has resulted in no prejudice to the Veteran. The Veteran does not demonstrate or complain that he has been prejudiced with regard to the content or timing of notice provided. Shinseki v. Sanders, 556 U.S. 396 (2009); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record further shows that the RO obtained the Veteran's STRs and VA medical records. Notably, VA's duty to assist by providing a medical examination or opinion does not apply to new and material evidence claims. Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, after review of the entire record, the Board finds that VA has complied with its duties to notify and assist. As such, the Board will now address the issue of whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for hypertension. II. Legal Criteria Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105 (West 2012). However, the Veteran may request that VA reopen his claim upon the receipt of "new and material" evidence. 38 U.S.C.A. § 5108 (West 2012). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. 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) (2013). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c) (4), which, "does not require new and material evidence as to each previously unproven element of a claim." Id at 120. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must decide, regardless of the RO's determination, whether new and material evidence has been received. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). III. Analysis The Veteran's claim to reopen for entitlement to service connection for hypertension is based upon the same factual basis as his original claim of entitlement to service connection which was denied in a May 2008 rating decision. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Veteran's initial claim for entitlement to service connection for hypertension was denied by a May 2008 RO rating decision. The evidence of record at the time of the May 2008 rating decision included the Veteran's STRs, personnel records and VA treatment records establishing a diagnosis of hypertension. The May 2008 rating decision indicated that the basis for the RO's denial was that hypertension was not caused by or did not occur in service and that hypertension did not manifest to a compensable degree within the presumptive period under 38 C.F.R. 3.307 (2013). The Veteran did not appeal this decision; therefore, it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). Since the final May 2008 rating decision, evidence associated with the claims file includes various VA treatment records and lay statements from the Veteran. The various VA treatment records contain notes regarding the treatment of the Veteran's hypertension. The Veteran's lay statements are general in nature regarding his hypertension. This evidence is new, as it did not exist at the time of the final disallowance in May 2008. While the evidence is new, it is not material. The new evidence does not relate to an unestablished fact necessary to substantiate the claim, namely evidence of hypertension in-service or within the one year presumptive period under 38 C.F.R. 3.307 (2013). This evidence does not raise a reasonable possibility of substantiating the claim. Further, it is cumulative and redundant of the evidence previously of record, as the new evidence only provides a current diagnosis of, and further treatment for, hypertension, which was already established prior to the May 2008 decision. In sum, the evidence submitted since the final May 2008 rating decision, while new, is not material evidence and it is not, therefore, sufficient to reopen the Veteran's claims for service connection for hypertension. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156 (2013). Therefore, the claim to reopen is denied. ORDER The application to reopen a claim for service connection for hypertension is denied. REMAND Regarding the Veteran's claim for an initial rating in excess of 0 percent for bilateral hearing loss, the most recent VA audiological examination was in August 2012, with a previous VA audiological examination in August 2010. In the Informal Hearing Presentation (IHP) submitted in October 2013, the Veteran's representative states that the Veteran's hearing is "getting progressively worse", highlighting the worsening results of the August 2012 VA audiological examination when compared to the August 2010 VA audiological examination. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). As the Veteran's complaints of progressively worsening hearing loss indicate possible increased severity of the service-connected bilateral hearing loss disability, the Veteran should be afforded a new VA examination to address the current severity of this condition. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. For each ear, the examiner must specifically record the decibel loss at the 1000, 2000, 3000, and 4000 Hz frequencies, and must provide results of a Maryland CNC word recognition test. The examiner must also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. 2. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the requested examiner's opinion does not answer or sufficiently answer the questions posed, return the case to the examiner for corrective action. 3. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs