Citation Nr: 0004972 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-12 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from May 1943 through December 1945. This appeal comes before the Board of Veterans' Appeals (BVA or Board) from a March 1998 rating decision by the Department of Veteran's Affairs (VA) Satellite Regional Office (RO) in Huntington, New York, which denied the benefit sought on appeal. FINDINGS OF FACT 1. In an unappealed March 1993 rating decision, the RO denied the veteran's claim of entitlement to service connection for bilateral hearing loss. 2. Most of the evidence associated with the claims file subsequent to the RO's March 1993 rating decision is cumulative and redundant, and the evidence which is neither cumulative nor redundant is not so significant that it must be considered to decide fairly the merits of this claim. CONCLUSIONS OF LAW 1. The RO's March 1993 decision denying entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 2. The evidence received subsequent to the RO's March 1993 denial is not new and material, and the requirements to reopen the claim of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially notes that after the case was referred to the Board for review, the veteran wrote to United States Senator Alfonse M. D'Amato requesting assistance with his claim and forwarded evidence to Senator D'Amato that has been previously associated with the claims file. Thereafter, Senator D'Amato forwarded the evidence and the veteran's correspondence to the Board in October 1998. This evidence was received within a period of ninety days of the date the RO certified this appeal to the Board for appellate review. See 38 C.F.R. § 20.305 (1999). This evidence consists of documents already contained in the record, and the veteran has previously been advised on several occasions that this evidence is duplicative. The Board notes that the evidence submitted was not considered by the RO or submitted with a waiver of RO consideration. Generally, under these circumstances this would require a remand by the Board for initial consideration of the evidence by the RO. See 38 C.F.R. § 20.1304(a). However, as the veteran has previously been advised by the RO that this evidence is duplicative of evidence already associated with the file, the Board finds that the veteran is not prejudiced by the fact that the RO has not considered the aforementioned evidence and a remand is not required. The veteran requests the Board to reopen his claim for service connection for bilateral hearing loss on the basis that he has submitted new and material evidence. The veteran contends that he was struck on his helmet by a shell fragment during combat service in World War II, which led to progressive bilateral hearing loss. Service connection for bilateral hearing loss was last considered and denied by the RO in March 1993. At that time, the RO denied the veteran's claim on the basis that bilateral hearing loss was not manifest during service, upon the veteran's discharge from service, or within one year following his discharge from service. Additionally, the veteran's hearing loss was not clinically demonstrated until approximately 10 years after his discharge from service. The evidence considered by the RO at the time of the March 1993 denial consisted of a September 1992 statement from the veteran and evidence previously associated with the veteran's claims file consisting of an October 1963 letter from John G. Remes, the results of an August 1963 audio evaluation, and a January 1964 letter from Gerard J. Grassi, M.D. As a general rule, within one year from the date of mailing the notice of an RO's decision, a Notice of Disagreement (NOD) must be filed in order to initiate an appeal of any issue adjudicated by the RO. See 38 U.S.C.A. § 7105(a), (b)(1) (West 1991). If a NOD is not filed within the prescribed period, the RO's determination becomes final. See 38 U.S.C.A. § 7105(c). Once an RO's decision becomes final, absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (1999). The Board is obligated to review all evidence submitted since the claim was disallowed by a final decision and if the Board's decision is favorable to the veteran, his claim must be reopened and decided on the merits. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. See 38 C.F.R. § 3.156(a). A three pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Secondly, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and finally, a determination must be made as to whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, supra. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a)(West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Pertinent evidence associated with the claims file since the RO's March 1993 denial includes: (1) a VA Form 21-526 ("Veteran's Application For Compensation Or Pension") dated March 1997 with attachments consisting of an October 1963 letter from John G. Remes, the results of an August 1963 audio evaluation, a January 1964 statement from Meyer Gorin, M.D., a January 1964 letter from Dr. Grassi and copies of the veteran's Honorable Discharges dated August 1941 and December 1945; (2) a VA Form 21-4138 ("Statement In Support Of Claim") dated March 1997 in which the veteran requests service connection for bilateral hearing loss; (3) a March 1997 VA audiological evaluation report; (4) a September 1992 letter from the veteran to the RO; (5) a VA Form 21-4138 ("Statement In Support Of Claim") dated June 1997 in which the veteran requests service connection for bilateral hearing loss and indicates that there is no new and material evidence to be submitted in support of his claim; (6) a November 1998 letter from the veteran to the RO; (7) a November 1998 letter from the veteran to Senator Alfonse M. D'Amato with attachments, and (8) an October 1998 letter from Senator D'Amato to the Board forwarding the veteran's correspondence. All of the evidence submitted by the veteran since the March 1993 RO denial is duplicative of evidence already associated with the claims file, but for the veteran's statements dated March 1997 and June 1997, the March 1997 VA audiological evaluation and the veteran's correspondence to Senator D'Amato. This nonduplicate evidence bears directly, but not substantially upon the specific matter under consideration. It is neither cumulative nor redundant, but by itself and in connection with evidence previously assembled it is not so significant that it must be considered to decide fairly the merits of the claim. The evidence is new in that it was not part of the record at the time of the March 1993 RO decision and it is not redundant of other evidence available at that time. However, the evidence is not material in that it does not establish that the veteran developed bilateral hearing loss during service or within one year following his discharge from service, or otherwise shown that the veteran's hearing loss is related to service. The evidence shows that in March 1997, the veteran underwent a VA audiological evaluation. At that time, the veteran reported that he had experienced tinnitus following a head trauma sustained during military service. The examination showed that the veteran currently has hearing loss, but does not relate the hearing loss to the veteran's period of active service, or show that the veteran developed hearing loss during service or within one year following his discharge from service. Because this evidence does not bear on the issue of whether the veteran's hearing loss was manifest during service, within one year following his discharge from service or otherwise related to service, no new and material evidence has been submitted. Based on the foregoing, the Board concludes that inasmuch as no new and material evidence has been presented to reopen the previously disallowed claim, the RO's March 1993 decision remains final. Accordingly, the benefit sought on appeal must be denied. ORDER New and material evidence to reopen the claim having not been submitted, service connection for bilateral hearing loss is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals