Citation Nr: 18140586 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-31 757 DATE: October 3, 2018 ORDER Reopening of a previously denied claim of service connection claim for hearing loss of the right ear is denied. FINDINGS OF FACT 1. Service connection for a right ear hearing loss was most recently denied in a January 2001 rating decision, finding no new and material evidence had been submitted; the prior denial on the merits was on the grounds that aggravation of a pre-existing disability was not shown. 2. Evidence submitted since January 2001 is not probative of the question of service connection; specifically it fails to address the unestablished fact of aggravation. CONCLUSIONS OF LAW 1. The January 2001 rating decision denying the Veteran’s petition to reopen the service connection claim for hearing loss of the right ear is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a previously denied claim of service connection for hearing loss of the right ear are not met. 38 U.S.C. §§ 5109, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1971, during the Vietnam Era. Whether new and material evidence has been received to reopen the service connection claim for hearing loss of the right ear. A January 2001 Regional Office (RO) decision declined to reopen a previously denied claim of service connection for right ear hearing loss; the prior denial on the merits found no aggravation of a pre-existing condition. Although the Veteran initiated an appeal of the denial, he failed to perfect such, and the denial became final. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision on the merits; it therefore appears that the RO reopened the claim without discussion. Irrespective of the RO’s determination, the Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of this claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). 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; 38 C.F.R. § 3.156. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 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 v. Brown, 9 Vet. App. 273 (1996). 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). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). April 1998 and January 2001 decisions denying service connection for right ear hearing loss established the fact of pre-existence based on service treatment records. Noise exposure and acoustic trauma in service were also established, in the granting of service connection for left ear hearing loss and tinnitus. The sole lacking element was a nexus to the current right ear disability which, based on the law of the case, must be established through aggravation. Since January 2001, the Veteran has submitted various statements, treatment records, and opinions addressing already established elements of noise exposure and a current disability. These items are not material or are not, to the extent they repeat previously considered allegations, new.. He has also submitted, or VA has obtained on his behalf, VA and private medical records, to include focused examinations, which include favorable nexus opinions stating that current right ear hearing loss is at least as likely as not related to military service. Unfortunately, no opining medical professional has contemplated the already adjudicated fact of pre-existing right ear hearing loss disability. Their opinions presuppose normal hearing at entry, which is simply not correct. A VA examiner initially did not review records to learn this fact, but even after the file was provided, expressly stated the disability did not exist prior to service. The private doctor simply attributes the loss to noise exposure and concludes the military was the culprit, without discussion of the Veteran’s actual situation. When an opinion is based on a demonstrably inaccurate fact, the opinion is not probative of the ultimate question. It cannot be new and material, as it has no relevance. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Accordingly, reopening of the previously denied claim of service connection for right ear hearing loss is not warranted. WILLIAM H. DONNELLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel