Citation Nr: 18157715 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-59 188 DATE: December 13, 2018 ORDER In the absence of new and material evidence, the application to reopen the previously denied claim of service connection for bilateral hearing loss is denied. REMANDED Entitlement for service connection for hypertension, to include as secondary to service-connected diabetes, is remanded. FINDINGS OF FACT 1. An unappealed May 2012 rating decision denied service connection for bilateral hearing loss. 2. Evidence added to the record since the final May 2012 rating decision regarding bilateral hearing loss is cumulative or redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2012 rating decision regarding the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.200, 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 had active service in the United States Army from January 1967 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran submitted a notice of disagreement (NOD) later in February 2016. A statement of the case (SOC) was issued in November 2016. The Veteran perfected a timely substantive appeal via VA Form 9 in December 2016. A supplement SOC was issued in May 2018. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. A claim of entitlement to service connection for bilateral hearing loss was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, a May 2012 rating decision denied a claim of entitlement to service connection bilateral hearing loss. While the Veteran was shown to have a diagnosis of bilateral hearing loss, a nexus was not established between that diagnosis and his service. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The May 2012 rating decision therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the final May 2012 rating decision included service treatment records (STRs), post-service private and VA treatment records, VA examination report dated April 2012, and statements from the Veteran including his application. In November 2015, the Veteran filed a claim of entitlement to service connection for bilateral hearing loss. Relevant additional evidence received since the May 2012 rating decision includes post-service VA and private treatment records, VA examination report dated December 2016, military personnel records, and further statements from the Veteran. This evidence was not previously on file at the time of the May 2012 decision; thus, it is new. However, the Board notes that the May 2012 rating decision did not dispute the existence of current hearing loss or in-service military noise exposure, but denied the claim due to lack of evidence of any nexus between his current diagnosis and his service. The evidence received since the final May 2012 rating decision demonstrates that the Veteran continues to experience bilateral hearing loss. Thus, it is largely cumulative, as it demonstrates the existence of a current diagnosis. Significantly, no additional evidence has been received purporting to establish a nexus between the current bilateral hearing loss and the Veteran’s service. As noted in the May 2012 rating decision, the April 2012 VA examination report found it less likely than not that the current hearing loss was related to in-service noise exposure. He acknowledged the Veteran’s exposure to trucks, 155s, mortars, machine gun fire, and incoming rockets. The examiner noted that the Veteran had 32 years of occupational noise exposure with no evidence of hearing loss until 2000. The Veteran underwent further VA audiological examination in January 2016. The examiner opined that the current hearing loss was less likely than not related to military noise exposure. While the January 2016 medical opinion is new, it is cumulative of the prior findings in the April 2012 VA examination report. To the extent that the Veteran’s statements reflect his personal belief that he has hearing loss related to service, this evidence is cumulative of evidence previously considered. Cumulative and duplicative evidence is not new. 38 C.F.R. § 3.156(a). Thus, the evidence is not new and material and is therefore insufficient to reopen the claim. The Board acknowledges that military personnel records were added to the claims file in October 2017, after the final May 2012 rating decision. However, they are repetitive in part of documents included in the Veteran’s STRs, which were considered by the RO in May 2012. Additionally, they are irrelevant to the issue at hand, as they contain primarily induction, promotion, and transfer documents. Thus, the Board does not find that the personnel records fall under 38 C.F.R. § 3.156(c)(1) so as to vitiate the finality of the May 2012 rating decision which clearly identified the lack of a nexus between hearing loss and service as the basis for denial. Accordingly, the Board finds that the evidence received since the May 2012 rating decision is either duplicative or cumulative of evidence previously of record, or does not relate to an unestablished fact necessary to substantiate the claim, such that this evidence does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Therefore, new and material evidence has not been received and the claim for service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108. REASONS FOR REMAND 1. Entitlement for service connection for hypertension, to include as secondary to service-connected diabetes, is remanded. The Veteran underwent VA examination in January 2016. The examiner reviewed the claims file and conducted an interview with the Veteran. Following physical examination, he noted a diagnosis of hypertension since 1995. As part of the Diabetes Mellitus Disability Benefits Questionnaire, the examiner checked a box indicating that the diabetes was at least as likely as not permanently aggravated by the Veteran’s hypertension. No rationale or explanation was given. In an addendum opinion prepared in February 2016, the examiner noted the diagnoses of hypertension and diabetes after reviewing the claims file and the recent examination report. She noted that the conditions were well-controlled with no evidence of worsening of the hypertension. No renal involvement was found. She opined that it was less likely than not that the hypertension was aggravated beyond the natural disease progression by the diabetes. Neither examiner addressed the issue of direct service connection. As noted in the February 2016 rating decision, the Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. However, no VA opinion of record has addressed whether the Veteran’s hypertension is a result of the presumed exposure to herbicides in Vietnam in light of the NAS upgrade of hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Moreover, in addressing secondary service connection, only aggravation was addressed. No opinion was provided as to whether the Veteran’s diabetes was the cause of his hypertension. Accordingly, an addendum opinion is warranted to address direct service connection as well as proximate causation for the Veteran’s diagnosed hypertension. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to his presumed exposure to herbicides in Vietnam in light of the NAS upgrade of hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure or proximately due to service-connected diabetes. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.