Citation Nr: 18151335 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-32 503 DATE: November 20, 2018 ORDER In the absence of new and material evidence, the Veteran’s petition to reopen his claim for service connection for hearing loss in the left ear is denied. In the absence of new and material evidence, the Veteran’s petition to reopen his claim for service connection for hearing loss in the right ear is denied. FINDINGS OF FACT 1. An unappealed September 2011 rating decision denied service connection for hearing loss in the Veteran’s left and right ears. 2. Evidence submitted since the September 2011 rating decision is duplicative, cumulative, and redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for his left ear hearing loss. 3. Evidence submitted since the September 2011 rating decision is duplicative, cumulative, and redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for his right ear hearing loss. CONCLUSIONS OF LAW 1. The September 2011 rating decision, which denied the Veteran’s claim of service connection for hearing loss in his left and right ears, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. New and material evidence has not been received, sufficient to reopen the claim for service connection for left ear hearing loss. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156 (2018). 3. New and material evidence has not been received, sufficient to reopen the claim for service connection for right ear hearing loss. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Duties to Notify and Assist VA’s duty to notify was satisfied by a letter dated in May 2011. See 38 U.S.C. § 5103 (2012); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to VA’s duty to assist the Veteran, the Veteran does not allege, and the record does not suggest, any outstanding evidence that may be obtained. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. The Veteran has not presented new and material evidence to reopen his claim for entitlement to service connection for hearing loss in the left and right ears. Legal Principles 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 nor 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background In an April 2001 rating decision, the RO denied the Veteran service connection for hearing loss in his left ear. Service connection was denied on the basis that there was no evidence showing that the Veteran’s pre-existing left ear hearing loss was aggravated during his military service. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. He also did not submit new and material evidence within the one year following that decision. 38 C.F.R. § 3.156(b). Thus, the decision became final. A January 2004 rating decision denied service connection for the Veteran’s hearing loss in his left and right ears. Service connection was denied for the left ear on the basis that the Veteran did not present new and material evidence to establish that this condition was aggravated during service. While service connection was denied for the right ear on the basis that there was no evidence that this condition either occurred in or was caused by service. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. Therefore, the decision became final. Both May 2008 and September 2011 rating decisions denied service connection for the Veteran’s hearing loss in his left and right ears on the basis that the evidence the Veteran submitted was not new and material. The decisions became final because the Veteran did not file timely appeals. Then, a September 2014 rating decision denied service connection for the Veteran’s bilateral hearing loss disability on the basis that the evidence the Veteran submitted was not new and material. The Veteran submitted a notice of disagreement in September 2014. After a June 2016 statement of the case (SOC) was issued, the Veteran submitted his substantive appeal in July 2016 and this issue was certified to the Board later that same month. Analysis The Veteran contends that he has submitted new and material evidence to reopen his claim for service connection for hearing loss in his right and left ears. 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 April 2001, January 2004, May 2008, and September 2011 rating decisions was the Veteran’s service medical and treatment records from October 1979 to August 1981; an April 2001 VA examination report; post-service treatment records from November 2001 to August 2002; February 2008 lay statements from S. L. D. and L. C.; and an April 2008 VA examination report. The RO denied service connection for left ear hearing loss in the rating decisions of April 2001, January 2004, May 2008, and September 2011, finding that the evidence failed to show aggravation of the Veteran’s pre-existing left ear hearing loss disability during service. The Veteran’s enlistment examination records show that the Veteran entered active duty service with a pre-existing hearing loss disability of the left ear. 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. An April 2001 VA audiological examination testing revealed moderate to moderately-severe, high frequency, sensorineural hearing loss in both ears and the examiner noted that the configuration of the Veteran’s hearing loss is typical of that caused by hazardous noise, but did not state whether this was due to noise exposure while the Veteran was in service. The Board notes that the VA has previously conceded the Veteran’s in-service exposure to high noise levels, based on his military occupation as an Indirect Fire Infantryman (mortarman), but also notes that hearing protection was always available. The April 2008 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 records, including the left ear hearing disability noted at service entrance). Therefore, considering 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 April 2008 VA report, the RO determined that the evidence then of record showed that the Veteran’s pre-existing 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 aggravation of the Veteran’s pre-existing left ear hearing loss by his military noise exposure. The RO denied service connection for right ear hearing loss in the rating decisions of January 2004, May 2008, and September 2011, finding that the evidence failed to show that the Veteran’s current hearing loss in the right ear occurred during service, 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 February 2008 lay statements from S. L. D. and L. C. indicate that the Veteran’s right ear hearing loss started when he was in service. However, the April 2008 VA examination report reflects a review of the Veteran’s medical records, including the service treatment records, and shows 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 evidence of record 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 has hearing loss in the right ear, but this 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 September 2011 rating decision consisted of VA treatment records from April 2008 to June 2016; and a July 2016 lay statement from the Veteran on his Form 9. The Board finds that some of the evidence received since the September 2011 rating decision is new, in that, it was not previously of record, particularly, the VA treatment records. However, the newly submitted evidence is not material because it does not show that the Veteran’s left ear hearing loss was aggravated in service or that his right ear hearing loss occurred in, or was caused by his military service. Specifically, the VA treatment records dated from April 2008 to June 2016, by itself, or when considered with previous evidence of record, do not relate to an unestablished fact necessary to substantiate the Veteran’s claim. A review of these records confirms the Veteran’s hearing loss in his left and right ears, which was already acknowledged in the September 2011 rating decision. The April 2008 to June 2016 records also show continued symptomatology and treatment for the Veteran’s hearing loss, but no evidence that his left ear hearing loss was aggravated in service or that his right ear hearing loss occurred during service. Therefore, this evidence is not new and material to the claim. The Veteran’s lay statement that he was a mortarman exposed to acoustic trauma was already noted in his June 2001 VA medical records. Moreover, VA has previously conceded the Veteran’s in-service exposure to high noise levels, based on his military occupation as a mortarman. As such, this evidence is also not new and material to the Veteran’s claim. While some of the evidence submitted since the September 2011 rating decision is new, it is not material, as it does not raise a reasonable possibility of substantiating a claim for service connection for hearing loss in the Veteran’s left and right ears. Therefore, since new and material evidence has not been received, the previously denied claim of entitlement to service connection for hearing loss in the left and right ears is 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). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Trowers, Associate Counsel