Citation Nr: 18146471 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 18-23 414 DATE: October 31, 2018 ORDER The petition to reopen a previously denied claim for bilateral hearing loss is denied. The petition to reopen a previously denied claim for tinnitus is denied. FINDINGS OF FACT 1. In April 2015, the RO denied service connection claims for bilateral hearing loss and tinnitus. 2. The April 2015 rating decision became final one year later, and no pertinent exception to finality applies. 3. Evidence received since the time of the final April 2015 rating decision is duplicative and cumulative of that available at the time of the prior final denial and does not raise a reasonable possibility of substantiating the claim of service connection for hearing loss and/or tinnitus. CONCLUSIONS OF LAW 1. The April 2015 rating decision that denied service connection for a hearing loss and tinnitus is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen the claims of service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from June 1963 to June 1966. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript has been associated with the claims file. Petition to Reopen Generally, a claim that has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Regulations provide that “new” evidence is existing evidence 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 neither be 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. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. The law provides that evidence proffered by the Veteran to reopen his claims is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. In April 2015, the RO denied service connection for both bilateral hearing loss and tinnitus. At that time, the RO considered the Veteran’s military personnel and treatment records, as well as the April 2015 VA examination. Service medical records did not show complaints or diagnosis of hearing loss or tinnitus. The VA examiner opined that his current hearing loss was not related to service because he had normal hearing at separation; there was no diagnosis of tinnitus during the exam. Based on the foregoing, the RO continued to deny service connection for lumbar spine disability because of no nexus to service. The April 2015 rating decision, with notice of appellate rights, was mailed to the Veteran’s address of record and was not returned as undeliverable. As he did not initiate an appeal within one year of the decision, the April 2015 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, an unestablished fact necessary to substantiate the claims for hearing loss and tinnitus is a medical nexus connecting his current conditions to an injury, event, or disease in service. Evidence associated with the claims file following the April 2015 rating decision, includes Board hearing testimony, and various VA and private treatment records dated from January 2014 to September 2017. During the August 2018 hearing, the Veteran testified that he was moved from tech supply to guided missile; he assisted in building missiles and was often exposed to explosions. He noted the noise from the explosions was loud enough to knock him off his feet, although, he was a “good little piece” away. He was seen at service annual testing and noted that his hearing had worsened. He testified that he had trouble hearing if he was not looking at or holding his ears towards the talker. Following service, he worked in a textile factory and was not exposed to any noise. As for his tinnitus claim, the Veteran indicated that “when it’s quiet, it’s quiet;” he noted that he took his hearing aids out at night. The VLJ explained to him that he needed an opinion discussing a nexus between his current disability and service and offered an extension so that he could submit additional evidence; the Veteran indicated he understood. Since that time, no opinion has been submitted. The submitted medical records show treatment and further complaints of sensorineural hearing loss and intermittent tinnitus, but do not offer any link between service and the Veteran’s current hearing conditions. Unfortunately, although the clinical evidence and testimony is new, the Board finds that the evidence is not material because it fails to demonstrate, suggest, or raise a reasonable possibility that the Veteran’s current hearing conditions were incurred in or otherwise related to his military service. Indeed, the treatment records, as well as the lay testimony provided by the Veteran, are merely a consolidation of years of treatment, and complaints of hearing problems, including receiving hearing aids in 2017. Although new records have been submitted, they are cumulative and duplicative of medical records already in the file, as they document complaints of hearing trouble that the Veteran reported had been present for years. Notably, the VA and private treatment records do not contain any indication or suggestion that the hearing loss or tinnitus that manifested after service are related to his military service. As a result, the Secretary’s duty to assist by providing a new medical examination or opinion regarding the current hearing disabilities is not triggered. See Shade, 24 Vet. App. at 120. In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for bilateral hearing loss and tinnitus. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claims of service connection for a hearing loss and tinnitus, and the Veteran’s petitions to reopen such claims are denied. There is no doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel