Citation Nr: 18145201 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-46 886 DATE: October 26, 2018 ORDER The request to reopen the finally disallowed claims of entitlement to service connection for hearing loss in the left and right ears is denied. FINDING OF FACT 1. In the September 2009 and December 2009 rating decisions, the Regional Office (RO) denied service connection for hearing loss in both ears; the Veteran did not perfect a timely appeal of either decision and the decisions became final. 2. The additional evidence received since the December 2009 rating decision is cumulative or redundant of the evidence previously of record at the time of the prior decisions, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the claims of service connection for hearing loss in the left and right ears. CONCLUSION OF LAW 1. The September 2009 and December 2009 rating decisions denying service connection for hearing loss in both ears are final. 38 U.S.C. § 7105 (2012; 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. The criteria for reopening the finally disallowed claims of entitlement to service connection for hearing loss in both ears are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1983 to September 1987. This appeal to the Board of Veteran’s Appeals (Board) arose from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran has perfected a timely appeal. See August 2014 Notice of Disagreement (NOD); December 2015 Statement of the Case (SOC); December 2015 Substantive Appeal (VA Form 9). New and Material Evidence Rating decisions that have not been timely appealed are binding and final based on the evidence on the record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. §5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted or considered by the agency decision makers. “Material” evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. §3.156(a). For the purposes of determining whether new and material evidence has been received to reopen a prior final disallowance of a claim, the recently submitted evidence will be presumed credible, unless the evidence is inherently false or untrue or, if in the nature of a statement or assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Duran v. Brown, 7 Vt. App. 216 (1995). VA must review the evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. West, 12 Vet. App. 247, 251 (1999). 1. Whether new and material evidence has been received to reopen the finally disallowed claim of entitlement to service connection for hearing loss in the left and right ears. In the September 2009 and December 2009 rating decisions, the RO denied service connection for hearing loss in the left and right ears. The RO notified the Veteran of the decisions and of his appellate rights in letters dated September 2009 and December 2009. The Veteran did not initiate an appeal by filing a NOD, nor did he submit new and material evidence within one year of that of the December 2009 rating decision. Thus, the September 2009 and December 2009 rating decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In October 2013, the Veteran filed a request to reopen the finally disallowed claims of service connection for hearing loss in his left and right ears. In an August 2014 rating decision, the RO reopened the claims but denied the claims again. Notwithstanding the RO’s actions to reopen and decide the claims on their merits, the Board has the legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claims of service connection for hearing loss in the left and right ears. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The relevant evidence that was considered at the time of the September 2009 and December 2009 rating decisions was the service treatment records from September 1983 to September 1987; the private medical records, including a March 2008 medical statement, from Dr. D.A., date February to April of 2008; a copy of a webpage regarding the USS Coral Sea; a September 2009 lay statement from Veteran; and an August 2009 VA examination report. The RO denied service connection for left ear hearing loss in the rating decisions of September 2009 and December 2009, finding that the evidence failed to show aggravation of the Veteran’s preexisting left ear hearing loss disability during service. The service treatment records show that the Veteran entered active duty service with a preexisting hearing loss disability of the left ear. See September 1983 Report of Medical Examination (audiometric results showing a decibel loss of 40 or more at the 3000 and 4000 hertz level for the left ear); 38 C.F.R. § 3.385. The service treatment records show, by comparison, that the audiometric results at entrance and at separation indicated no worsening in the Veteran’s hearing acuity in the left ear during service. The March 2008 private medical statement from Dr. D.A. reflects that the Veteran’s hearing loss was secondary to his military noise exposure (which made no mention of the service treatment records or the left ear hearing disability noted at the Veteran’s entrance into service). The November 2009 VA examination report reflects that the audiometric scores noted at separation showed no worsening of the left ear hearing loss when compared to the scores noted at enlistment (which indicates a review of the service treatment record including the left ear hearing disability noted at service entrance). In sum, in light of no worsening being shown in the Veteran’s left ear hearing acuity at separation, taken together with his military noise exposure, the finding of a left ear hearing disability at entrance, and the difference of opinions expressed by Dr. D.A in the March 2008 private medical statement and by the VA examiner in the November 2009 VA report, the RO determined that the evidence then of record showed that the Veteran’s preexisting left ear hearing loss was not aggravated by acoustic trauma in service. Accordingly, the Board finds that new and material evidence would consist of evidence that relates to the aggravation of the Veteran’s preexisting left ear hearing loss by his military noise exposure. The RO denied service connection for right ear hearing loss in the rating decisions of September 2009 and December 2009, finding that the evidence failed to show hearing loss in the right ear during, or that such condition was incurred within the one-year after service. The service treatment records reflect that the Veteran did not complain of, or seek treatment for right ear hearing problems while in service, and his hearing acuity in the right ear was deemed to be within normal limits at the time of separation. The March 2008 private medical statement from Dr. D.A. reflects that the Veteran’s hearing loss was secondary to his military noise exposure (which made no mention of a review of the service treatment records). The November 2009 VA examination report reflects a review of the Veteran’s medical records, including the service treatment records and the March 2008 private medical statement, and indicates that there was no significant change in the Veteran’s right ear hearing for any frequency noted in the in-service audiometric evaluations to explain that the Veteran displayed normal hearing throughout service in his right ear, including at separation. The claim was denied based on the rationale that the record evidence showed no basis to relate the Veteran’s current right ear hearing loss disability to his military noise exposure, or that such condition was incurred within one year after service. As such, the RO determined that the Veteran currently had hearing loss in the right ear, but such condition was not incurred in service or caused by his exposure to loud noise in service. Accordingly, the Board finds that new and material evidence would consist of evidence that tends to indicate that the Veteran’s hearing loss in his right ear was caused by his military noise exposure or that he incurred such hearing loss within the one year after service. The evidence received since the December 2009 rating decision consisted of VA treatment records from July 2009 to August 2014; and a copy of the March 2008 private medical statement from Dr. D.A., which was received in November 2013. The VA treatment records dated from July 2009 to November 2009 were already of record at the time of September and December 2008 rating decision, and are duplicative and cumulative of the evidence considered by the RO in the December 2009 rating decision. Thus, this evidence is not new and material to the claim. The VA treatment records from June 2013 to September 2013 show three different visits regarding the Veteran’s hearing loss. In June 2013, it is noted that the Veteran complained about having a chronic hearing problem. His prior medical history of tinnitus and a hearing problem was recorded. A hearing evaluation was conducted and no further opinion was given at the time. In VA medical records dated August 2013, the Veteran was seen by an audiology doctoral student. In the report, it is noted that the Veteran was having difficulty hearing in multiple situations. It was also noted that the Veteran was an aircraft carrier while in-service. It was noted the Veteran reported constant tinnitus bilaterally and a history of sinus infections. An audiological test was conducted, the results of which showed mild sensorineural hearing loss in the right ear, and mild to moderately sensorineural hearing loss in the left ear. It was noted the thresholds had significantly decreased since the last audiological evaluation in November 2009. The Veteran’s speech recognition scores were good bilaterally. The Veteran was counseled on the nature and degree of his hearing loss, and his candidacy for hearing aids was explained to him. In September 2013, the Veteran was seen by an otolaryngologist. During that visit, the Veteran complained about his worsening hearing. His prior history of tinnitus and hearing problems were noted. An examination was conducted. As reported in the August 2013 visit, he exhibited mild sensorineural hearing loss in the right ear and mild to moderate sensorineural hearing loss in the left ear. It was again noted that the thresholds significantly decreased since the November 2009 audiological evaluation. The notations from these examinations are merely information recorded by the examiners without providing any additional opinions regarding whether the Veteran’s hearing loss is due to his service. Evidence which is simply recorded by a medical examiner without any additional medical comment by the examiner does not constitute “competent medical evidence”, and cannot satisfy the nexus element of service connection. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). This evidence cannot enjoy the presumption of truthfulness according to Justus. Id. Because the reports from those visits merely record the Veteran’s statements and history without additional opinion regarding the matter, this evidence is redundant and cumulative to the evidence submitted at the time of the December 2009 rating decision; thus, the evidence is not new and material. The private medical letter from Dr. D.A. received on November 2013 is the exact same letter from March 2008, which was considered in the December 2009 rating decision. This evidence is redundant and cumulative; thus, the evidence is not new and material. The VA treatment records also show the Veteran being fitted for hearing aids in December 2013. This further supports his current diagnosis of a hearing loss disability within VA standards, which has been already established at the time of December 2009 rating decision. This evidence is redundant and cumulative of the evidence submitted at the December 2009 rating decision; thus, the evidence is not new and material. The VA examiner for the August 2014 examination considered all the evidence of the record. Again, the VA examiner opined that the Veteran’s hearing loss was not caused by or aggravated by acoustic trauma. This was the same opinion given in the November 2009 VA examination, which was considered at the time of the December 2009 rating decision. Although the opinion is new because it was not considered at the time of the prior decision, it is not material because it is a negative opinion regarding a nexus between service and his hearing service. All other VA treatment records dated between July 2009 and August 2014 are not germane to the bilateral hearing loss claim. Therefore, while some of the evidence submitted since the December 2009 rating decision was new, it is not material as it does not raise a reasonable possibility of substantiating a claim for service connection for the left and right ear. Since new and material evidence has not been received, the previously denied claims of entitlement for service connection for hearing loss in the left and right ears are not reopened. The benefit sought is denied. The benefit of the doubt doctrine is not applicable in this case since the Veteran has not met the threshold burden of submitting new and material evidence necessary to reopen a claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel