Citation Nr: 1802854 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 17-14 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for vertigo. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a December 2017 Board hearing. A transcript of the hearing is included in the claims file. 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. In an October 2007 decision, the Board denied the claim of entitlement to service connection for vertigo and nausea from an inner ear disorder. Although notified of the Board's decision by an October 2007 letter, the Veteran did not appeal this decision, and the decision became final. 2. Evidence associated with the claims file since the October 2007 Board decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for vertigo and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2007 Board decision denying the claim of entitlement to service connection for vertigo and nausea from an inner ear disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. As evidence received since the October 2007 Board decision is not new and material, the criteria for reopening the claim of entitlement to service connection for vertigo is not met. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In January 2016, the Veteran submitted an application to reopen the claim of entitlement to service connection for vertigo. VA may reopen and review 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); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). In an October 2007 decision, the Board denied the claim of entitlement to service connection for vertigo and nausea from an inner ear disorder because the Veteran was not diagnosed with any inner ear or imbalance disability. Specifically, the Board acknowledged the Veteran's service treatment records discussing symptoms of dizziness and nausea from 1967. Additionally, the Board noted a February 2004 letter from a private doctor discussing the Veteran's symptoms of chronic vertigo and recurring inner ear symptoms caused by an allergy and fungal infections from active duty service. However, the Board determined that this February 2004 letter was not credible, and that the claims file did not include any other medical treatment records during the appeal showing a current disability. The Board concluded that the Veteran was not diagnosed with and did not have any currently existing inner ear or imbalance disability during the appeal because the credible lay and medical evidence did not show such a disability. The Veteran was notified of the Board's denial by an October 2007 letter, which included as an attachment the October 2007 decision. The Veteran did not appeal this decision to the U.S. Court of Appeals for Veterans Claims. Thus, the October 2007 Board decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7104(b); see also 38 C.F.R. §§ 3.156(a), 20.1100. Since the October 2007 Board decision, the Veteran has submitted additional lay statements alleging that he has current vertigo or inner ear disability. He made such contentions in his January 2016 application and March 2017 substantive appeal to the Board (VA Form 9), in which he described the presence of dizziness and nausea while on active duty. He also testified during the December 2017 Board hearing that he had current symptoms of intermittent dizziness and nausea, which lasted from half a day to three days and presented monthly. Additionally, he resubmitted the February 2004 letter from a private doctor in January 2016 in conjunction with his application to reopen a claim of entitlement to service connection for vertigo. The claims file also includes VA treatment records from July 2009 to August 2017 discussing the Veteran's various treatment for disorders other than an inner ear disorder or symptoms of vertigo or nausea. In fact, the Veteran has denied having such symptoms in multiple VA treatment records, including a September 2015 cardiology clinic note and a September 2016 cardiology note. Evidence associated with the claims file since the October 2007 Board decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for vertigo and does not raise a reasonable possibility of substantiating the claim. Specifically, the Veteran's lay statements from January 2016, March 2017, and December 2017 that he currently has vertigo, dizziness, and nausea, and that these symptoms have been present since service, are same or similar to those statements he made to VA prior to the October 2007 Board decision. Thus, these assertions were known to VA adjudicators when the claim for service connection was denied in October 2007. Likewise, the February 2004 letter from a private doctor was known to VA at the time of the previous denial, and was specifically addressed in the October 2007 Board decision. The remainder of the new evidence in the form of VA treatment records since July 2009 does not pertain to any inner ear disorder or any symptoms of dizziness or nausea. In fact, the Veteran denied such symptoms in VA cardiology records on several occasions since October 2007. Overall, the new lay and medical evidence does not raise a reasonable possibility of substantiating the claim because the new evidence does not show that the Veteran has been diagnosed with or treated for any current inner ear or vestibular disability, or that such a disability has been present, during the appeal period. Accordingly, the application to reopen the claim of entitlement to service connection for vertigo is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board regrets that a more favorable determination could not be made in this case and appreciates the service the Veteran provided to this country. ORDER The application to reopen a claim of entitlement to service connection for vertigo is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs