Citation Nr: 1339834 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-16 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence was received to reopen a claim for entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty for more than 11 years, including from August 1941 to October 1945 and from August 1957 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision on behalf of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board remanded the case for additional development in August 2013. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A February 2005 rating decision denied entitlement to service connection for bilateral hearing loss and tinnitus; the Veteran was properly notified of the decision but did not appeal. 2. Evidence added to the record since the February 2005 rating decision does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. New and material evidence was not received and the claim for entitlement to service connection for bilateral hearing loss may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence was not received and the claim for entitlement to service connection for tinnitus may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties 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, 3.326(a) (2012). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing notice of the duties to notify and assist claimants in substantiating a claim it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The Veteran was provided notice as to these matters by correspondence dated in October 2010. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service records, service department reports concerning the availability of service treatment records, private treatment records, VA treatment records, VA examination reports, and statements and testimony in support of the Veteran's claims. Further attempts to obtain additional evidence would be futile. The Board notes that in June 2013 the Veteran testified, in essence, that information in a March 2012 VA examination report indicating he had worked as a punch press operator after service was erroneous. A September 2013 VA examination report noted, in essence, that the available record had been reviewed and that etiology opinions as to the Veteran's bilateral hearing loss and tinnitus could not be provided without resort to speculation. Although the Court in McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006), held that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus, the Board finds no further action is required to assist the Veteran in obtaining evidence to reopen his claims. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007) ("once the Board decided that the appellant's claim could not be reopened, the Secretary's conditional duty to provide the appellant with a new medical examination was extinguished" and the adequacy of the examination became moot); see also 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(iii) (2012). There has been substantial compliance with all pertinent VA law and regulations and to adjudicate these claims would not cause any prejudice to the appellant. New and Material Evidence Claims VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that 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 (Fed. Cir. 2000). When making a determination whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, a February 2005 rating decision denied entitlement to service connection for bilateral hearing loss and tinnitus. It was noted that the available service department sick reports did not demonstrate treatment for hearing loss and that the December 2004 VA examiner had considered the Veteran's military and post-service occupational noise exposure in finding that it was less likely than not that his hearing loss was incurred as a result of service. The tinnitus claim was denied because the evidence failed to show a clinical diagnosis of a disability that was incurred during military service or was the result of disease or injury incurred during military service. The Veteran was notified of the decision, but did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The evidence added to the record since February 2005 includes VA treatment and examination reports and statements and testimony in support of the Veteran's claims. VA treatment records and examination reports note present bilateral hearing loss and tinnitus disabilities without etiology opinions relating the disorders to service. In statements and testimony provided in support of his claims the Veteran reported having had noise exposure during service. He also provided information concerning his post-service occupational noise exposure. Based upon the evidence of record, the Board finds that the evidence received since the February 2005 rating decision does not raise a reasonable possibility of substantiating the claims. The evidence obtained as to hearing loss is essentially cumulative of the evidence previously considered and there is no indication that the newly obtained evidence could, if the claim were reopened, reasonably result in substantiation of the claim. There is no new evidence relating the Veteran's bilateral hearing loss to service. Although the new evidence includes diagnoses of tinnitus, the evidence does not demonstrate the disorder was incurred during or as a result of service. In fact, a November 2011 VA treatment report noted the Veteran denied a history of tinnitus and a March 2012 examination report noted he reported tinnitus that started five to ten years earlier. There is no new evidence relating tinnitus to service which was the bases for the final decision as to this matter. Therefore, the claims for entitlement to service connection may not be reopened. ORDER New and material evidence was not received to reopen a claim for entitlement to service connection for bilateral hearing loss; the appeal is denied. New and material evidence was not received to reopen a claim for entitlement to service connection for tinnitus; the appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs