Citation Nr: 20046571 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 18-43 572 DATE: July 13, 2020 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for tinnitus and the appeal is denied. REMANDED Entitlement to an initial compensable rating for right foot strain is remanded. FINDING OF FACT 1. In a November 2016 rating decision, the RO denied service connection for tinnitus. The Veteran was notified of that decision and her procedural and appellate rights the same month. She did not appeal the decision. 2. The evidence pertaining to tinnitus associated with the claims file since November 2016 denial, when considered by itself or in connection with evidence previously assembled, is not material and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The November 2016 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.156 (b), 20.1103 (2016). 2. Evidence received since the November 2016 rating decision is not new and material and the claim of entitlement to service connection for tinnitus is not reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from January 2012 to January 2016. These matters come to the Board of Veterans’ Appeal (Board) from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “[i]f 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.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. The original claim for service connection for tinnitus was denied by a November 2016 rating decision. The Veteran was notified of this decision and of her appellate and procedural rights via correspondence dated in the same month. The Veteran did not appeal this decision and it is final. The denial was based on a determination that there was no evidence of a link between currently existing tinnitus and military service. The evidence of record at that time was the service treatment records, VA clinical records, and the report of an October 2016 VA examination. The service treatment records were silent as to complaints of, diagnosis of or treatment for tinnitus. The VA clinical records did not link tinnitus to active duty. The report of the October 2016 VA examination indicates the examiner found that currently existing tinnitus was not linked to active duty. The pertinent evidence received subsequent to the November 2016 rating decision which denied service connection for tinnitus consists of VA clinical records and statements from the Veteran. This evidence does not satisfy the definition of new and material evidence. The VA clinical records do not indicate that current tinnitus is linked to active duty in any way. This evidence is new but not material as it does not provide evidence of a link between active duty and the current diagnosis. Evidence of current treatment which does not indicate, in any way, that a disorder is linked to active duty is not new and material evidence in this case. The statements from the Veteran which were received subsequent to the prior final denial are to the effect that she was required to be around loud noise during her time in active duty. This evidence is not material to reopening the claim. There is no question as to whether the Veteran was exposed to noise during active duty. This was noted at the time of the prior VA examination. Significantly, the Veteran’s statement does not provide evidence linking current tinnitus to military service which was the reason for the prior final denial. It sets out a condition during active duty which is not at issue. The pertinent evidence received subsequent to the November 2016 rating decision does not raise a reasonable possibility of substantiating the claim. The evidence is therefore not new and material and reopening the claim for service connection for tinnitus is not warranted. Although the threshold to reopen is low, such threshold is not met in this case. See Shade, 24 Vet. App. at 118. The benefit-of-the-doubt doctrine is therefore not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for right foot strain is remanded. Subsequent to the last adjudication of the claim on appeal, which was in July 2018, additional pertinent evidence was received including VA clinical records and the report of a June 2019 VA examination of the feet. This evidence was not reviewed by the agency of original jurisdiction and there is no indication that the Veteran waived review by the agency of original jurisdiction. As a result, a remand is required to allow the RO to review this evidence and, if the claim is still denied, to issue a supplemental statement of the case. The matters are REMANDED for the following action: 1. Obtain updated VA and/or identified pertinent private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. After the development in paragraph one has been completed to the extent possible, readjudicate the claim of entitlement to an initial compensable rating for right foot strain. Such readjudication must address the additional pertinent evidence received subsequent to the last adjudication. (Continued on the next page)   3. If the right foot claim remains denied, issue the Veteran a supplemental statement of the case documenting the adjudicatory actions and return the appeal back to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.