Citation Nr: 18144039 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 18-03 344 DATE: October 23, 2018 ORDER The application to reopen the previously disallowed claim for service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. By a decision entered in June 2012, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina denied the Veteran’s claim for service connection for bilateral hearing loss; he was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s June 2012 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. The evidence received since the time of the RO’s June 2012 decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2012). 2. New and material evidence to reopen the claim for service connection for bilateral hearing loss has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1991 to November 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by a VA RO. The application to reopen the previously disallowed claim for service connection for bilateral hearing loss is denied. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The evidence reflects that the RO denied the Veteran’s claim for service connection for bilateral hearing loss in June 2012. Following a review of the claims file as it then existed, the RO concluded that although the Veteran reported in-service acoustic trauma, VA audiometric testing in September 2011 did not demonstrate the presence of a VA hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated that same month. No pertinent evidence was received during the one-year period following mailing of notice of the RO’s June 2012 decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the evidence received since the time of the RO’s June 2012 decision continues to demonstrate that the Veteran does not have a current hearing loss disability as defined by regulation. On VA clinical evaluation in March 2016, audiometric testing produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 30 LEFT 10 15 20 20 25 Speech audiometry revealed speech recognition ability (Maryland CNC) of 100 percent, bilaterally. On subsequent VA examination in December 2017, audiometric results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 20 35 LEFT 25 15 15 20 35 Speech audiometry revealed speech recognition ability (Maryland CNC) of 96 percent, bilaterally. Although the Veteran questions the validity of the speech recognition results obtained on testing in March 2016 and/or December 2017, there is no suggestion on the face of the reports that the results are in any way questionable, inaccurate, or unreliable. Nor is there any other competent evidence to that effect. In light of the foregoing, the Board finds that the evidence received since June 2012 is not new and material. There is still no evidence that the Veteran has a current hearing loss disability as defined by regulation. Because the evidence received since the time of the RO’s June 2012 decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim, the petition to reopen the previously denied claim for service connection for bilateral hearing loss must be denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel