Citation Nr: 1801627 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-07 201A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim for service connection for hepatitis C. 4. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability. 5. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) located in St. Petersburg, Florida. The Board notes that a Board hearing was scheduled for November 2016, of which the Veteran was sent notice. However, the Veteran did not appear, has not submitted good cause for failing to appear, and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017) (failure to appear for a scheduled hearing treated as withdrawal of request). FINDINGS OF FACT 1. In a July 2009 rating decision, the RO in pertinent part denied reopening of the Veteran's claims for service connection for bilateral hearing loss, tinnitus, hepatitis C, a lumbar spine disability, and an acquired psychiatric disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since the July 2009 final decision is essentially cumulative of the evidence previously of record with regard to the bases for the prior denial, i.e., lack of evidence that bilateral hearing loss, tinnitus, hepatitis C, the lumbar spine disability, and acquired psychiatric disability were incurred in service or related to service. CONCLUSIONS OF LAW 1. Evidence received since a final July 2009 decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for bilateral hearing loss is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. Evidence received since a final July 2009 decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for tinnitus is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 3. Evidence received since a final July 2009 decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for hepatitis C is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 4. Evidence received since a final July 2009 decision is not new and material and reopening of the Veteran's claim for entitlement to service connection a lumbar spine disability is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 5. Evidence received since a final July 2009 decision is not new and material and reopening of the Veteran's claim for entitlement to service connection an acquired psychiatric disability is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided by a letter dated in September 2011. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service and VA medical records have been obtained, as have relevant private medical records identified by the Veteran. The Veteran has not been provided with VA examination in connection with this appeal. VA's statutory duty to provide a VA examination in a service connection claim that has been previously denied by a final decision does not attach until the claim has been reopened based on the submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As explained below, the appellant has not submitted new and material evidence here and therefore a VA examination or medical opinion is not required. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Reopening of Service Connection for Bilateral Hearing Loss, Tinnitus, Hepatitis C, Lumbar Spine Disability, and Acquired Psychiatric Disability The Veteran seeks to reopen his previously denied claims for service connection for bilateral hearing loss, tinnitus, hepatitis C, a lumbar spine disability, and an acquired psychiatric disability. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Bilateral Hearing Loss and Tinnitus The Veteran's claims for service connection for bilateral hearing loss and tinnitus were most recently denied in a July 2009 rating decision on the grounds that there was no new and material evidence showing that the Veteran's hearing loss and tinnitus were incurred in service or caused by the Veteran's military noise exposure. No appeal was filed, and no evidence or new service records were received within one year of the RO decision. The Board therefore finds that the July 2009 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence at the time of the July 2009 rating decision included the Veteran's service treatment records showing no complaints, treatment, or diagnosis of hearing loss or tinnitus. The May 1976 service separation examination report shows no notations of hearing loss or tinnitus, and the Veteran did not report hearing loss or tinnitus at service separation. The evidence also included assertions by the Veteran that his hearing loss and tinnitus are related to in-service loud noise exposure as part of his military occupational specialty (MOS) as a machine gunner and infantryman. The evidence also included the June 2007 VA audiological examination report showing that the Veteran reported noise exposure in service, as well as post-service occupational noise exposure in construction, maintenance, carnival work, and truck driving, and that the date and circumstances of onset of his tinnitus were unknown. The VA examiner diagnosed bilateral sensorineural hearing loss and tinnitus, and opined that the Veteran's hearing loss and tinnitus are not the result of in-service acoustic trauma, and noted that hearing loss and tinnitus are the result of civilian occupational and recreational noise exposure. The Board finds that the evidence submitted since the July 2009 final denial is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. Evidence received since the July 2009 rating decision includes similar assertions by the Veteran that his hearing loss and tinnitus are related to in-service loud noise exposure as part of his MOS. This evidence is not "new" as defined by 38 C.F.R. § 3.156(a) because the assertions contained therein were considered at the time of the July 2009 RO denial, and such assertions are therefore cumulative. The Veteran has not otherwise submitted any medical evidence linking his bilateral hearing loss or tinnitus to his in-service loud noise exposure. The Board therefore finds no new evidence that is not cumulative to evidence considered in the July 2009 final denial, and the Veteran's claims for service connection for hearing loss and tinnitus are therefore not reopened. Hepatitis C The Veteran's claim for service connection for hepatitis C was most recently denied in a July 2009 rating decision on the grounds that there was no new and material evidence showing that the Veteran's hepatitis C was incurred in or related to service. No appeal was filed, and no evidence or new service records were received within one year of the RO decision. The Board therefore finds that the July 2009 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence at the time of the July 2009 rating decision included the Veteran's service treatment records showing no complaints, treatment, or diagnosis of hepatitis C. Moreover, the May 1976 service separation examination shows a normal clinical evaluation of the endocrine system, and the Veteran did not report any hepatitis C symptoms at service separation. The evidence also included assertions by the Veteran that his hepatitis C is related to high risk activities in service, including intravenous drug use, drinking alcohol, sexual activities with prostitutes, piercings, and tattoos. The evidence also includes VA treatment records, as well as the June 2007, showing a diagnosis of hepatitis and a history of illicit drug and alcohol abuse. The Board finds that the evidence submitted since the July 2009 final denial is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. Evidence received since the July 2009 rating decision includes similar assertions by the Veteran that his hepatitis C is related to high risk activities in service, including intravenous drug use, drinking alcohol, sexual activities with prostitutes, piercings, and tattoos, as well as medical records showing a history of treatment of hepatitis C. This lay evidence is not "new" as defined by 38 C.F.R. § 3.156(a) because the Veteran's assertions contained therein were considered at the time of the July 2009 RO denial, and such assertions are therefore cumulative. The Veteran has not otherwise submitted any medical evidence linking his hepatitis C to service. As a hepatitis diagnosis was confirmed and of record at the time of the July 2009 denial, any new records merely confirming such diagnosis would not be "new" and "material" because the unestablished fact at the time of the prior denial was the question of a causal link with service, not the question of diagnosis. The Board therefore finds no new evidence that is not cumulative to evidence considered in the July 2009 final denial, and the Veteran's claim for service connection for hepatitis C is therefore not reopened. Lumbar Spine Disability The Veteran's claim for service connection for a lumbar spine disability was most recently denied in a July 2009 rating decision on the grounds that there was no new and material evidence showing that the Veteran's lumbar spine disability was incurred in or related to service. No appeal was filed, and no evidence or new service records were received within one year of the RO decision. The Board therefore finds that the July 2009 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence at the time of the July 2009 rating decision included the Veteran's service treatment records showing that the Veteran had back pain as a result of trauma from a horse falling on the Veteran during service. The Veteran was given pain medications. Service treatment records showed that the Veteran was also involved in a motorcycle accident in October 1975, but did not have any complaints pertaining to the back. The rest of the Veteran's service treatment records show no complaints, treatment, or diagnosis of a back disability. The May 1976 service separation examination shows a normal clinical evaluation of the spine, and the Veteran did not report any back symptoms at service separation. The evidence also included assertions by the Veteran that his back disability is related to the in-service motorcycle and horse accidents. The evidence also included VA and private treatment records showing that the Veteran was diagnosed with lumbar spine degenerative disc disease. The Board finds that the evidence submitted since the July 2009 final denial is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. Evidence received since the July 2009 rating decision includes similar assertions by the Veteran that his lumbar spine disability is related to the in-service motorcycle and horse accidents. This evidence is not "new" because such contentions were considered at the time of the July 2009 RO denial and are fundamentally cumulative in nature. The Veteran has not otherwise submitted any medical evidence linking his lumbar spine disability to service. Any medical evidence addressing spine symptoms would not be "material" unless such records contained information linking the disorder to service, as the Veteran's diagnosis was well-established in the record at the time of the July 2009 denial. The Board therefore finds no new evidence that is not cumulative to evidence considered in the July 2009 final denial, and the Veteran's claim for service connection for a lumbar spine disability is therefore not reopened. Acquired Psychiatric Disability The Veteran's claim for service connection for a psychiatric disability was most recently denied in a July 2009 rating decision on the grounds that there was no new and material evidence showing that the Veteran's psychiatric disability was incurred in or related to service. No appeal was filed, and no evidence or new service records were received within one year of the RO decision. The Board therefore finds that the July 2009 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence at the time of the July 2009 rating decision included the Veteran's service treatment records showing no complaints, treatment, or diagnosis of a psychiatric disability. Moreover, the May 1976 service separation examination shows a normal psychiatric evaluation, and the Veteran did not report any psychiatric symptoms at service separation. The evidence also included assertions by the Veteran that his current psychiatric disability started in service in that he started feeling depressed approximately one year prior to service separation after receiving a letter from his uncle where his uncle wrote negative things about the Veteran's family which caused the Veteran to be depressed and angry. The evidence also included VA and private treatment records showing that the Veteran was diagnosed with depression. The evidence at the time of the July 2009 rating decision also included the July 2007 VA psychiatric examination report which included similar reports by the Veteran about being depressed after receiving his uncle's letter, as well as assertions that the Veteran's rank was E2, that he was promoted to E4, and then demoted to E2 due to gambling and being AWOL. The Veteran also asserted that, thereafter, he had depression and irritability on and off for years but did not pay much attention to it until four years earlier. The VA examiner diagnosed the Veteran with chronic depressive disorder with anxiety symptoms, and opined that his current psychiatric disability is less likely than not caused by or the result of the Veteran's military service unless it is accepted that his hepatitis is service connected. However, as noted above, the Board has denied reopening the Veteran's claim for service connection for hepatitis C. The July 2007 VA examiner opined that the Veteran's psychiatric disorder is mostly secondary to post-service psychosocial stressors of problems relating to primary support group, health problems, unemployment, and other social/environmental problems. The Board finds that the evidence submitted since the July 2009 final denial is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. Evidence received since the July 2009 rating decision includes similar assertions by the Veteran that his current psychiatric disability started in service in that he started feeling depressed approximately one year prior to service separation after receiving a letter from his uncle where his uncle wrote negative things about his family, which is shown by the deterioration of his performance and demotion. This evidence is not new because such assertions were considered at the time of the July 2009 RO denial and are fundamentally cumulative in nature. The Veteran has not otherwise submitted any medical or other mental health-related (e.g., individual or group therapy) evidence linking his psychiatric disability to service. The Board would again point out that the July 2009 denial was based not on the absence of a diagnosis, then shown in the record, but on the preponderance of the evidence then being against a causal link with service. As such, any new medical evidence addressing psychiatric symptoms would not be "material" unless such records contained information linking the disorder to service. The Board therefore finds no new evidence that is not cumulative to evidence considered in the July 2009 final denial, and the Veteran's claim for service connection for a lumbar spine disability is therefore not reopened. ORDER New and material evidence having not been received, the appeal to reopen the claim for service connection for bilateral hearing loss is denied. New and material evidence having not been received, the appeal to reopen the claim for service connection for tinnitus is denied. New and material evidence having not been received, the appeal to reopen the claim for service connection for hepatitis C is denied. New and material evidence having not been received, the appeal to reopen the claim for service connection for a lumbar spine disability is denied. New and material evidence having not been received, the appeal to reopen the claim for service connection for an acquired psychiatric disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs