Citation Nr: 1754568 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-24 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a balance disorder, to include Benign Paroxysmal Positional Vertigo (BPPV), as secondary to service-connected ear disabilities, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1953 to September 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. By a January 2009 rating decision, the RO denied the Veteran's claim for service connection for a balance disorder, to include BPPV; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year; nor was any new and material evidence received within one year. 3. Additional evidence received since the RO's January 2009 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a balance disorder, to include BPPV, and raises a reasonable possibility of substantiating the claim. 4. The evidence is at least in relative equipoise as to whether the BPPV was caused by service-connected ear conditions. CONCLUSIONS OF LAW 1. The RO's January 2009 rating decision denying service connection for a balance disorder, to include BPPV, is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a balance disorder, to include BPPV. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a balance disorder, to include BPPV, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. §3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. §3.310(b)). In the present case, the RO, by a decision entered in January 2009, denied the Veteran's claim for service connection for a balance disorder on grounds that there is no current diagnosis. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017). As a result, the RO's decision became final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017)). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For claims to reopen filed on or after August 29, 2001-such as the Veteran's-evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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) (2013). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeal for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component of what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. If the new evidence would raise a reasonable possibility of substantiating the claim when considered with the old evidence, it triggers the Secretary's duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the evidence received since the time of the RO's January 2009 rating decision includes VA treatment records from April 2010 that show a diagnosis of BPPV. This evidence was not before adjudicators when the Veteran's claim was last denied in January 2009, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a balance disorder, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Turning to the merits of the Veteran's claim, the Board finds, first, that the Veteran has BPPV, as diagnosed by a VA examiner in April 2010. The VA examiner also noted that the Veteran has a history of chronic imbalance, and uses a cane because he thinks he might fall. The Veteran is currently service-connected for bilateral hearing loss, tinnitus, and otitis media. In a January 2005 VA audiology examination, the examiner noted that the Veteran fell three times within the past year. The examiner added that the Veteran fell one time on a ladder, and one time when he got out of bed, due to a dizziness and balance problem most likely due to his ear condition. As the evidence above establishes a link between the Veteran's current disability of BPPV and his service-connected ear conditions, the Board is satisfied that the criteria for entitlement to service connection for a balance disorder, to include BPPV, have been met. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for a balance disorder, to include BPPV, is reopened. Service connection for a balance disorder, to include BPPV, is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs