Citation Nr: 18149173 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-46 139 DATE: November 8, 2018 ORDER As new and material evidence has not been received, the previously denied claim of service connection for bilateral hearing loss is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for tinnitus is not reopened. FINDINGS OF FACT 1. In a decision dated on February 24, 2014, the Board denied the Veteran’s claims of service connection for bilateral hearing loss and for tinnitus; this decision was not appealed and became final. 2. The evidence received since the February 2014 Board decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claims of service connection for bilateral hearing loss and for tinnitus and does not relate to unestablished facts necessary to substantiate either of these claims. CONCLUSIONS OF LAW 1. The February 2014 Board decision, which denied claims of service connection for bilateral hearing loss and for tinnitus, is final. 38 U.S.C. §§ 7104, 7266 (West 2012); 38 C.F.R. § 20.1100 (2017). 2. Evidence received since the February 2014 Board decision in support of the claim of service connection for bilateral hearing loss and for tinnitus is not new and material; thus, these claims are not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1962 to February 1965. A videoconference Board hearing was held in August 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board observes that, in February 2014, it denied the Veteran’s claims of service connection for bilateral hearing loss and for bilateral tinnitus. The Veteran did not appeal this decision and it became final. See 38 U.S.C. §§ 7104, 7266 (West 2012). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for bilateral hearing loss and for tinnitus are as stated on the title page. Regardless of the actions taken by the Agency of Original Jurisdiction (AOJ), the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The issues of entitlement to compensation under 38 U.S.C. § 1151 for dyspnea and for a cardiovascular disability, each claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing outpatient treatment (“1151 claims”), have been raised by the record in separate VA Form 21-256EZs filed by the Veteran in February and April 2018, respectively, but have not been adjudicated by the AOJ. The Board recognizes that, in general, it no longer refers back unadjudicated claims to the AOJ; in this case, however, given the Veteran’s advanced age, the Board finds that referral of these 1151 claims to the AOJ is appropriate because it does not have jurisdiction over them and no relevant appellate record for these claims exists in the Veterans Appeals Control and Locator System (VACOLS). Service Connection The Veteran essentially contends that new and material evidence has been received to reopen his previously denied claims of service connection for bilateral hearing loss and for tinnitus. With the exception of 1151 claims referred back to the AOJ for appropriate action (as discussed above), neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). 1. Whether new and material evidence has been received to reopen claims of service connection for bilateral hearing loss and for tinnitus The Board finds that the preponderance of the evidence is against granting the Veteran’s requests to reopen his previously denied claims of service connection for bilateral hearing loss and for tinnitus. Despite the Veteran’s assertions to the contrary, the newly received evidence does not support reopening either of these previously denied claims. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that his previously denied service connection claims for bilateral hearing loss and for tinnitus be reopened when he submitted a VA Form 21-256EZ which was dated on May 25, 2015, and date-stamped as electronically received by the AOJ on June 5, 2015. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen his previously denied service connection claims for bilateral hearing loss and for tinnitus, the evidence which was before the Board at the time of the prior final decision in February 2014 consisted of his service treatment records, his post-service VA and private outpatient treatment records, and his August 2013 Board hearing testimony and lay statements. The Board found that the medical evidence did not support finding an etiological link between bilateral hearing loss or tinnitus and active service or any incident of service. Thus, the claims were denied. The newly received evidence still does not indicate that either the Veteran’s bilateral hearing loss or tinnitus is related to active service or any incident of service. The evidence received since February 2014 consists of additional VA and private outpatient treatment records and the Veteran’s lay statements and August 2018 Board hearing testimony. The Board acknowledges that the newly received evidence shows ongoing complaints of and treatment for bilateral hearing loss and tinnitus and the Veteran has received bilateral hearing aids from VA. In other words, the Board finds that the evidence received since February 2014 is duplicative of evidence previously considered by the AOJ in adjudicating the Veteran’s claims. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Shade v. Shinseki, 24 Vet. App 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s requests to reopen his previously denied service connection claims for bilateral hearing loss and tinnitus, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening either of these claims. Unlike in Shade, there is no evidence in this case – either previously considered in the February 2014 Board decision or received since this decision became final – which demonstrates that either of these disabilities is related to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran’s requests to reopen his previously denied service connection claims for bilateral hearing loss and for tinnitus. In summary, as new and material evidence has not been received, the previously denied claims of service connection for bilateral hearing loss and for tinnitus are not reopened. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel