Citation Nr: 18152681 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-35 387 DATE: November 23, 2018 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss. The appeal is denied. FINDINGS OF FACT 1. By an October 2013 rating decision, the Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied. 2. Evidence received since the October 2013 rating decision is cumulative of the evidence that was of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The October 2013 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 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1968 to December 1970. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that VA treatment records have been associated with the Veteran’s claims folder following the issuance of the most recent adjudication of the Veteran’s claims (a May 2016 statement of the case (SOC)). However, these records are duplicative of medical evidence dated prior to the May 2016 SOC. As such, the Board finds that remand for a waiver of this evidence is not necessary. See 38 C.F.R. §§ 19.9, 20.1304(c) (2017). I. VA’s Duty to Notify and Assist The VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2017). Neither the Veteran nor his representative have identified any shortcomings or alleged prejudice in fulfilling VA’s duty to notify and assist. The Board is not required to search the record to address procedural arguments that a claimant has not raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In light of the foregoing, nothing more is required. II. New and Material Evidence The Veteran contends that his current hearing loss is due to in-service acoustic trauma. By way of history, the Veteran filed his initial right ear hearing loss claim in August 2009, which the RO denied in a May 2012 rating decision. Thereafter, the Veteran filed a claim for bilateral hearing loss in June 2012, which the RO denied in October 2013, finding a negative nexus between the Veteran’s hearing loss and his military service. The Veteran did not express disagreement with the October 2013 rating decision or submit new and material evidence within a year, which then became final after the one-year mark. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). A 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; 38 C.F.R. § 3.156 (a); 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, and must raise a reasonable possibility of substantiating the claim. 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) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination to reopen a claim based on new and material evidence. See Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). In its October 2013 rating decision, the RO denied the claim of entitlement to service connection for bilateral hearing loss based on the finding that the evidence of record failed to establish a medical link between the hearing loss and military service. The pertinent evidence of record at the time of the October 2013 rating decision consists of the service treatment records, private medical records, and the report of a VA audiological examination conducted in December 2011. Clinical evaluation of the Veteran’s ears was determined to be normal at the time of the entrance examination and the exit examination. The private medical records includes a April 2005 record wherein the Veteran complaints of decreased hearing. In February 2003, he denied hearing problems. The report of the November 2011 VA examination included a diagnosis of current hearing loss for VA purposes. It was noted that the Veteran worked as a combat engineer and demolition blaster and that he fired weapons with his right hand during service. He did not use hearing protection during active duty. The etiology opinion was negative based on the finding that hearing loss was not present at the time of discharge with the exception of some hearing loss at 500 Hertz which on current testing is better and in normal range and frequency. The examiner also cited that noise exposure did not cause latent onset hearing impairment. Evidence submitted since the October 2013 rating decision includes medical treatment records, the Veteran’s lay statement in July 2016 that he was exposed to loud noises due to his duties as a demolition blaster in-service, and photographs submitted by the Veteran documenting his military service. This evidence is new, as it was not previously in the record. However, the new evidence is not material evidence, as it does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection. Therefore, the Veteran’s claim to reopen service connection for bilateral hearing loss must be denied. The VA examiner who conducted the November 2011 VA examination reported the Veteran’s duties as a demolition blaster in-service. The VA examiner also referenced the Veteran’s reported history of hearing loss at the time of the examination. The examiner took the Veteran’s statements into consideration when she gave a negative opinion that the Veteran’s bilateral hearing loss was caused by military service. This examination was part of the evidence of record prior to the October 2013 rating decision. Consequently, the Veteran’s lay statement and photographs are cumulative of the evidence of record prior to the October 2013 rating decision. In addition, the medical evidence obtained since the October 2013 rating decision includes duplicative VA treatment records, as well as new VA treatment records. These records confirm that the Veteran continues to experience bilateral hearing loss and seek active treatment for it. However, these medical records do not indicate that the Veteran’s bilateral hearing loss is linked to active duty. Medical records which document current treatment for a disorder but do not link the disorder to active duty in any way are not new and material evidence. Consequently, this medical evidence is cumulative of the evidence of record prior to the October 2013 rating decision. The record continues to lack evidence showing a nexus connecting the Veteran’s hearing loss to service. The new evidence, even when considered with the evidence of record in October 2013, does not relate to the unestablished fact necessary to substantial the claim (i.e. evidence of a nexus between service and current disability). As such, the new evidence does not raise a reasonable possibility of substantiating the underlying claim for service connection. 38 C.F.R. § 3.156 (a). (Continued on the next page)   Accordingly, the Board cannot grant the Veteran’s claim to reopen service connection for bilateral hearing loss. The appeal is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel