Citation Nr: 1746972 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 16-39 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1952 to August 1954. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen claims of service connection for bilateral hearing loss and tinnitus. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A March 2009 Board decision denied the Veteran service connection for bilateral hearing loss and tinnitus, finding that such disabilities were not related to his service. 2. Nothing added to the record since March 2009 shows or suggests that the Veteran's bilateral hearing loss or tinnitus may be etiologically related to his service. CONCLUSION OF LAW New and material evidence has not been received, and the claims of service connection for bilateral hearing loss and tinnitus may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties 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 2014). The VCAA applies to the instant claim. While the Veteran may not have received Kent v. Nicholson, 20 Vet. App. 1 (2006) compliant notice prior to the RO's initial adjudication of the instant claim, adequate notice was provided in a June 2016 statement of the case (SOC), and the matter was thereafter readjudicated in November 2016. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect is cured by the issuance of fully compliant notification followed by readjudication of the claim). Therefore, any earlier notice omission is harmless. The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice was less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error) As was noted in the Board's March 2009 decision, the Veteran's complete service treatment records (STRs) are unavailable (they are certified to have been destroyed by a fire at the National Personnel Records Center (NPRC)). When, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). The Veteran was notified of the missing records in a letter dated in August 2005 and was given the opportunity to submit records in his possession. The RO obtained postservice VA treatment records and private treatment records (identified by the Veteran). He was afforded a VA audiological examination in September 2005. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "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 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 . When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A March 2009 Board decision denied service connection for a bilateral hearing loss and tinnitus on the basis that such disabilities were not shown to be related to the Veteran's service. The March 2009 Board decision is final. See 38 U.S.C.A. § 7104. Accordingly, for evidence to pertain to an unestablished fact necessary to substantiate the claims and be new and material, warranting reopening of the claims, it would have to tend to show that the Veteran's bilateral hearing loss and tinnitus are etiologically related to his service. Pertinent documents received for the record since the March 2009 Board decision include VA treatment records, and a May 2015 statement by the Veteran identifying providers of early postservice treatment he received for hearing loss and tinnitus. Nothing added to the record since the March 2009 Board decision shows or suggests that his bilateral hearing loss and/or tinnitus may be related to his service. VA treatment records since March 2009 note the Veteran's reports of decreased hearing acuity and that he uses hearing aids, but do not relate the disabilities to his service. See March 2010 VA treatment record). Therefore, they are not material evidence. In the May 2015 statement, the Veteran asserts that his bilateral hearing loss and tinnitus developed as a result of exposure to weapons-firing noise in combat service. This theory of entitlement was considered in the prior Board decision (see p. 11 of March 2009 Board decision), and is not new. He also reported that from the time of his discharge from service (until at least March 2001 when he established care at Mount Vernon SOC) he received treatment for hearing loss and tinnitus from Veterans Health Care System of the Ozarks in Fayetteville, AK. Because records of early postservice treatment would support a continuity of symptoms theory of entitlement to service connection for the claimed chronic disabilities, the RO sought records from the Fayetteville, AK facility, and received a response that no such records were found. In light of the foregoing, the Board finds that evidence received since the March 2009 Board decision does not relate to an unestablished fact necessary to substantiate the claims of service connection for bilateral hearing loss or tinnitus; does not raise a reasonable possibility of substantiating such claims; and is not new and material. Accordingly, the claims of service connection for bilateral hearing loss and tinnitus may not be reopened. ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is denied. The appeal to reopen a claim of service connection for tinnitus is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs