Citation Nr: 18150677 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-28 418A DATE: November 15, 2018 ORDER New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for bilateral hearing loss. Service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. In a June 2013 rating decision, the RO denied the Veteran’s claim for service connection for bilateral hearing loss; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final June 2013 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 3. In a December 2015 rating decision, service connection was granted for left ear hearing loss. 4. The Veteran’s right ear hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. The June 2013 rating decision denying the Veteran’s claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the service connection claim for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to March 2004. 1. New and material evidence: Bilateral hearing loss A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Thus, the Board’s task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran’s claim. By way of history, rating decisions in January 2005 and June 2013 denied the Veteran’s claim for bilateral hearing loss due to no diagnosis of hearing loss for VA purposes. The Veteran was informed of these decisions in writing and did not appeal these decisions or submit pertinent evidence during the appeal period. Therefore, these rating decisions are final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the last final rating decision in June 2013, the Veteran submitted a May 2015 private audiogram indicating hearing loss for VA purposes. See 38 C.F.R. § 3.385. Consequently, new evidence associated with the claims file indicating a current diagnosis of hearing loss for VA purposes raises a reasonable possibility of substantiating the Veteran’s prior claim. Accordingly, this evidence is also material. As new and material evidence has been received, the claim for service connection for bilateral hearing loss is reopened. 2. Service connection: Right ear hearing loss The Veteran filed a claim to reopen bilateral hearing loss and contended that his hearing loss is due to acoustic trauma in service. After reopening his claim for bilateral hearing loss, a December 2015 rating decision granted service connection for hearing loss for the left ear and denied service connection for the right ear. The Board concludes that the Veteran has a current diagnosis of hearing loss for VA purposes, as demonstrated by the October 2015 VA audiological examination reporting an auditory threshold of 45 decibels at 4000 Hertz. See 38 C.F.R. § 3.385. The evidence suggests that the Veteran was exposed to acoustic trauma in service, and the evidence is at least in equipoise that his right ear hearing loss is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a); see also Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). The October 2015 VA examiner opined that the Veteran’s right ear hearing loss was not at least as likely as not related to service, based on her review of the claims file and in person examination of the Veteran. The rationale for her medical opinion was that at the time of separation the Veteran had normal hearing in his right ear. However, during a prior VA audiological examination, the March 2013 VA examiner opined that the Veteran’s bilateral hearing loss was at least as likely as not related to service. This VA examiner opined, based on his review of the claims file and in-person examination of the Veteran, that the Veteran’s bilateral hearing loss was due to noise exposure sustained in service associated with such duties as air assault missile maintenance, range crewmember, drill sergeant, and weapons instructor. Based on the foregoing, the Board finds that the evidence for and against the claim of entitlement to service connection for right ear hearing loss is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel