Citation Nr: 1805614 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-25 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for post-operative evidence of a distal fibular fracture, left ankle. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1973 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2016, the Board remanded this matter to schedule a Videoconference hearing. In July 2016, the Veteran testified at a Videoconference hearing before the undersigned. A transcript of the hearing is associated with the record. During the hearing, the record was held open for 60 days until September 27, 2016, to allow the Veteran the opportunity to submit additional evidence; however, to date, no additional evidence has been received. FINDINGS OF FACT 1. At his July 2016 hearing, prior to the promulgation of a decision in appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for post-operative evidence of a distal fibular fracture, left ankle. 2. A claim for service connection for bilateral hearing loss and tinnitus was denied in a June 2011 rating decision. 3. The evidence submitted since the June 2011 rating decision, pertinent to the claims for service connection for bilateral hearing loss and tinnitus, is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with regard to post-operative evidence of a distal fibular fracture, left ankle, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The June 2011 rating decision that denied service connections for bilateral hearing loss is final. 38 U.S.C. §§ 5108, 7105 (West 2012). 3. The June 2011 rating decision that denied service connections for tinnitus is final. 38 U.S.C. §§ 5108, 7105 (West 2012). 4. Evidence received since the June 2011 rating decision is not new and material, and the Veteran's claim for service connection for bilateral hearing loss is not reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156(a) (2017). 5. Evidence received since the June 2011 rating decision is not new and material, and the Veteran's claim for service connection for tinnitus is not reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). The Court in Shade further held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of history, the AOJ originally denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus in August 2005. The Veteran sought to reopen his claim in July 2010. The record reflects that claims for entitlement to service connection for bilateral hearing loss and tinnitus were last denied by a June 2011 rating decision. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At that time, the AOJ declined to reopen the claims for bilateral hearing loss or tinnitus, finding that the Veteran had not submitted new and material proof of Shedden element (3), the nexus requirement, between his disabilities and service. Therefore, the Veteran's claim may only be opened if new and material evidence is submitted. Since the June 2011 rating decision denied the claim on the basis that the evidence did not establish a nexus, the Board finds that new and material evidence would consist of evidence indicating that the etiology of the Veteran's bilateral hearing loss and tinnitus was related to service. Evidence received since the June 2011 decision consists of numerous medical records and documents including lay statements. Although the Veteran has submitted various treatment records, there is no evidence that the Veteran's bilateral hearing loss or tinnitus has a nexus to the duties of the Veteran's military occupational specialty (MOS). The Board notes that the evidence supports the Veteran's assertions that his MOS was a general radar operator mechanic during service. See DD Form 214 Certificate of Release or Discharge from Active Duty. Importantly, however, the medical evidence has failed to prove that the Veteran's bilateral hearing loss and tinnitus were etiologically related to the Veteran's MOS or any other in-service issue. In July 2016, the Veteran testified that he went to see a private physician for a hearing test. He reported that the private physician opined that the Veteran's hearing loss and tinnitus had begun since he was in the military. The Veteran's representative stated that a hearing evaluation report from the private physician was submitted, but an opinion was not. The Board notes that an April 2015 hearing evaluation report from Dr. T.S. is included in the Veteran's file. The Veteran stated that he could obtain an opinion from Dr. T.S. providing an etiology opinion, and that the record was held open for 60 days so that he could do so. In August 2016 and June 2017, the Veteran submitted a Statement in Support of Claim stating that he was unable to obtain the opinion from Dr. T.S., and requested a new VA audiological examination for his bilateral hearing loss and tinnitus service connection claims. Finally, in regards to the Veteran's request for a new VA examination, the Board notes that the VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Thus, any question as to the adequacy of a VA examination is moot prior to reopening of the claim. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, the Board is unable to conclude that this evidence constitutes new and material evidence to reopen the claim. Furthermore, the Board has no alternative but to conclude that the additional evidence and material received in this case does not relate to an unestablished fact necessary to substantiate the claim, and is thus not material. It is not material because it does not indicate that the Veteran's hearing loss or tinnitus was causally or etiologically due to his military service, and therefore does not raise a reasonable probability of substantiating the claim. 38 U.S.C. § 3.156(a). ORDER The appeal with regard to post-operative evidence of a distal fibular fracture, left ankle, is dismissed. New and material evidence having not been received, the Veteran's application to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is denied. New and material evidence having not been received, the Veteran's application to reopen the previously denied claim for entitlement to service connection for tinnitus is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs