Citation Nr: 18152828 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-43 273 DATE: November 27, 2018 ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. An unappealed January 2014 rating decision denied service connection for bilateral hearing loss, essentially on the basis that such disability was not shown to be related to service. 2. Evidence received since the January 2014 rating decision does not tend to show that the Veteran's hearing loss is related to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for hearing loss; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for bilateral hearing loss may not be reopened. 38 U.S.C. § § 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty in the Martine Corps from June 1973 to June 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an January 2014 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means 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). When determining whether the claim should be reopened, the credibility of newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156(a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). When there is a final rating decision denial of a claim of service connection, such claim may not be reconsidered and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. The appeal to reopen claim of service connection for bilateral hearing loss is denied. A January 2014 rating decision denied the Veteran service connection for bilateral hearing loss based essentially on a finding that any hearing loss was not related to the Veteran’s service (the rating decision also noted that VA audiometry was invalid because puretone thresholds were not in agreement with speech reception scores). He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the January 2014 rating decision included the Veteran’s service treatment records, VA medical treatment records, lay statements by the Veteran and the report of an examination conducted on behalf of VA in December 2013. Evidence received since the January 2014 rating decision includes notes from a July 2014 VA audiology consult report and argument by, and on behalf of, the Veteran in in his November 2015 Disagreement (NOD) and August 2016 VA Form 9. The report of the audiology consult notes that it was not a C&P exam (conducted for rating purposes); it is not shown to have been conducted in accordance with 38 C.F.R. § 4.85. More significantly, the provider did not offer an opinion regarding the etiology of any hearing loss disability, but noted that the Veteran had not established service connection for hearing loss. This evidence is new in the sense that the report was not previously in the record. However, it is not material, as it does not pertain to the unestablished fact necessary to substantiate the claim of service connection for hearing loss; it does not tend to relate the Veteran’s hearing loss to his service. In his NOD and VA Form 9, the Veteran asserts that he has a hearing loss disability caused by exposure to machine gun noise in service. This information and argument is cumulative, and not new. In May 2013 correspondence, considered in the January 2014 rating decision, the Veteran had reported that he was exposed to machine gun noise in service (a matter which is not in dispute), and alleged that he had a hearing loss disability due to such exposure. Nothing in the record received since the January 2014 rating decision is new evidence that tends to relate a current hearing loss disability to the Veteran’s service (and exposure to noise therein). Therefore, the additions to the record since the January 2014 rating decision are not new evidence that relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; do not raise a reasonable possibility of substantiating such claim; and are not new and material evidence. Accordingly, the claim of service connection for bilateral hearing loss may not be reopened. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Robert Cordingley, Associate Counsel