Citation Nr: 0722556 Decision Date: 07/24/07 Archive Date: 08/02/07 DOCKET NO. 06-17 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL Appellant and his daughter-in-law ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1960 to October 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2006, the veteran appeared at the Indianapolis RO and testified via video before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veterans Claims Assistance Act has been satisfied with respect to the issue on appeal. 2. In September 1970, the RO denied entitlement to service connection for bilateral hearing loss. The veteran was notified of this decision by a letter October 7, 1970, and he did not appeal. 3. Evidence received since the September 1970 RO denial was previously submitted, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 20.1103 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify claimants for VA benefits of information necessary to submit in order to complete and support a claim and has a duty to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). The basic VCAA notice requirements in this appeal have been satisfied by virtue of letters sent to the veteran in September 2005 and May 2006. These letters advised the veteran of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, these letters expressly told the veteran to provide any relevant evidence in his possession. See 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The September 2005 letter informed the appellant of the evidence and information required to reopen such a claim and defined what qualifies as "new" and "material" evidence. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Additional correspondence notified the veteran that his claim of entitlement to service connection for bilateral hearing loss had initially been denied because his service medical records were silent for findings of hearing loss and there was no evidence of record of acoustic trauma during service. The May 2006 letter notified the veteran of the information and evidence necessary to establish a disability rating and an effective date from which payment shall begin. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As for the duty to assist, VA ordinarily has a duty to assist a claimant in obtaining evidence necessary to substantiate the claim, as well as to provide a medical examination when such an examination is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the issue on appeal, however, involving the matter of whether a previously denied claim may be reopened, VA's duty to assist the appellant in the development of a claim is not triggered unless and until a claim is reopened. See 38 U.S.C.A. § 5103A. In any event, the claims file contains the veteran's service medical records. The appellant has not identified any outstanding medical records that he wishes for VA to obtain on his behalf. Therefore, the Board finds the duty to assist has been satisfied. Analysis In a September 1970 decision, the RO denied the veteran's claim of entitlement to service connection for bilateral hearing loss. This decision is final, and may not be reopened on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). If, however, "new and material" evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108 (West 2002). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2006). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the April 1970 denial, the only evidence that has been added to the record is an October 1996 VA examination report and an October 2006 Board hearing transcript. This evidence is considered to be new because it was not of record at the time of the April 1970 denial. It is not, however, material to establishing the veteran's claim. The October 1996 VA examination report diagnoses the veteran's current hearing loss. However, it does not provide evidence that the veteran suffered hearing loss while in service or shortly after separation from service, and it offers no opinion as to the cause of his current hearing loss. As noted above, the veteran's claim was previously denied because he did not have evidence demonstrating that he incurred a hearing disability while in service. Therefore, because it is not evidence that the veteran experienced hearing loss while in service, the October 1996 VA examination report is not considered to be material evidence for the purpose of reopening the veteran's claim. The October 2006 Board hearing is not material evidence, either. In his testimony, the veteran provided no new evidence to demonstrate that he suffered a hearing disability while in service. His testimony essentially repeated the statements he submitted in August 1970 when he first filed for service connection. At the hearing, the veteran indicated that there was no one who could testify that he served as a gunner and was exposed to loud noise during service. He also testified that he did not seek treatment for his hearing loss while in service, and he did not mention the existence of any medical records that he wished for VA to obtain for him. Therefore, the appellant has not submitted evidence that is probative to demonstrating that he incurred a hearing disability during active duty. Thus, the evidence does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss, and the appellant's application to reopen this claim must be denied. 38 C.F.R. § 3.156(a) (2006). ORDER New and material evidence not having been submitted, the appeal to reopen the veteran's claim of entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs