Citation Nr: 1802174 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 875 ) 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 for service connection for left ear hearing loss, and if so, whether the claim can be granted. 2. Entitlement to service connection for rhinitis. 3. Entitlement to service connection for a sinus disability other than rhinitis. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2012 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran participated in an informal conference hearing with a Decision Review Officer (DRO) in August 2016. He withdrew his request for a Board hearing that same month and has not requested that the hearing be rescheduled. The claim for service connection for a hearing loss disability was initially denied in an unappealed December 2008 rating decision. The Board finds that the benefits claimed and denied in the prior rating decision and the current claim are the same as the Veteran has identified the same disability and cause of said disability in each claim. The Board, therefore, does not construe the current claim as a claim for a "distinctly diagnosed disease" from the claim adjudicated in 2008. As such, his current claim is not a separate and distinct claim, but rather a claim to reopen his prior determination. See Velez v. Shinseki, 23 Vet. App. 199 (2009). As service connection has since been awarded for a right ear disability, the claim has been characterized accordingly on the title page of this page. The issues of entitlement to service connection for rhinitis and a sinus disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In December 2008, service connection for left ear hearing loss disability was denied; a notice of disagreement and/or new and material evidence was not received within one year of notice of that decision. 2. Evidence received more than one year after the December 2008 decision is cumulative or redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the claim for service connection for a left ear hearing loss disability. CONCLUSIONS OF LAW 1. The December 2008 decision that denied service connection for a hearing loss disability is final. 38 U.S.C. §§ 7104(b), 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2017). 2. Evidence received more than one year since the December 2008 decision is not new and material and the claim to reopen service connection for left ear hearing loss disability is denied. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in September 2010 and June 2012, prior to the initial adjudication of the issues on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified treatment records. The Veteran has not identified any outstanding and available medical treatment records pertinent to the claim for left ear hearing loss. The Veteran specifically identified VA audiogram treatment during an August 2016 DRO conference and that all relevant evidence was obtained accordingly. There is no evidence that there are outstanding VA treatment records specifically relevant to the left ear hearing loss claim. For a finally-denied claim, VA is not required under the VCAA to provide a medical examination unless the claim is first reopened upon receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii). Nevertheless, regarding an October 2012 VA examination, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C.§ 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim to Reopen: Left Ear Hearing Loss Generally, a claim which has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The claim for service connection for a left eye disability was initially denied in an unappealed December 2008 rating decision on the basis that a left hear hearing loss disability clearly and unmistakably existed before service and was not aggravated during or as a result of service. The Veteran did not issue a notice of disagreement or new and material evidence within one year of notice of the rating decision. Therefore, the decision on the claim became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.202, 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c)). At the time of the original decision, service treatment records demonstrated that left ear hearing loss at 4000 Hertz upon enlistment examination, that there was no evidence of treatment or diagnosis of a worsening of left ear hearing loss during service, and that his left ear hearing acuity actually improved at 4000 Hertz, when compared to the audiogram conducted at the separation examination. The Veteran had also described the kinds of noise to which he was exposed during service. Since the claim to reopen was filed in August 2010, the Veteran has not submitted any evidence to contradict the finding of the original rating decision that his left ear hearing loss pre-existed service and was not aggravated therein. The medical treatment records obtained since the claim was filed merely demonstrate treatment for current hearing loss and do not demonstrate evidence as to the etiology. A statement from the Veteran's wife discussed the current hearing loss symptoms and the fact that the Veteran described to her being exposed to noise during service. The fact that the Veteran has current left ear hearing loss and was exposed to noise during service are not at issue and have been conceded in this and the prior claim. Moreover, the evidence since the last final denial includes an October 2012 VA examination in which the examiner noted that left ear hearing loss did not worsen but actually improved from enlistment to separation. The favorable opinion indicated in that examination, based on the context and a logical reading of the examination as a whole, refers to the right ear, which has since been service-connected. In the August 2016 DRO conference report, the DRO noted that the reason for the denial of the claim was explained to the Veteran and that he was advised that his claim would benefit if he could provide a medical opinion which contradicted the finding that his left ear hearing loss was not aggravated during service. The Veteran's response was to request that the updated VA audiograms be obtained and associated with the claims file. At no point has the Veteran identified or submitted new and material evidence. He has, instead, recited the same contentions as were the subject of the claim denied in 2008. Based on the forgoing, the Board finds that the evidence submitted since the 2008 rating decision is duplicative of that which was previously considered by VA in the final 2008 rating decision and does not represent new and material evidence sufficient to reopen the claim. As such, the claim to reopen is denied. ORDER New and material evidence has not been received and the claim to reopen service connection for left ear hearing loss is denied. REMAND In his October 2015 claim, the Veteran reported receiving ongoing VA treatment for the claimed rhinitis and sinus disabilities. However, the file contains no records since November 2015. VA has a responsibility to obtain all relevant VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made). If medical evidence of a current rhinitis or other sinus disability is obtained, the Veteran should be provided with a VA examination to assess the nature and etiology of that disability(s). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records documenting treatment for symptoms and diagnoses of a rhinitis and sinus disability as identified by the Veteran in his claim for service connection and associate them with the claims file. 2. If the newly obtained evidence suggests or demonstrates a current rhinitis or other sinus-related disability, schedule the Veteran for a new VA examination, to determine the current nature and etiology of that symptom(s) or disability(s). The claims folder should be made available to and reviewed by the examiner. All indicated studies, including x-rays, should be performed. The examiner should identify the nature and severity of all manifestations of a sinus disability and should specifically state whether the Veteran has rhinitis. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current sinus disability had onset in service or is otherwise related to a disease or injury in service. The examiner should provide reasons for the opinions and should specifically take into account the lay reports from the Veteran and his wife of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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. §§ 5109B, 7112 (West 2012). ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs