Citation Nr: 18158623 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-63 358 DATE: December 17, 2018 ORDER New and material evidence to reopen the claim of entitlement to service connection for a left shoulder condition has not been received. New and material evidence to reopen the claim of entitlement to service connection for a low back condition has not been received. New and material evidence to reopen the claim of entitlement to service connection for hearing loss has not been received. New and material evidence to reopen the claim of entitlement to service connection for hypertension has not been received. REMANDED Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. In an unappealed August 1993 decision, the RO denied the Veteran’s claim of service connection for high blood pressure, now claimed as hypertension, hearing loss, a back condition, and a left shoulder condition; the Veteran did not appeal this determination, and new and material evidence was not received within a year of its issuance. 2. The Veteran has not submitted any evidence since the August 1993 rating decision relating to service connection for hypertension, left shoulder and a back condition. 3. The evidence added to the record since August 1993 continues to show the Veteran does not have a hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The August 1993 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection, hypertension, hearing loss, a back condition, and a left shoulder condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by an August 2015 Board decision so that a Statement of the Case (SOC) could be issued. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, 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 generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). 1. Left Shoulder Condition The RO denied service connection for a left shoulder condition in an August 1993 rating decision, finding that there was no nexus between the Veteran's current shoulder pain and his in-service shoulder injury. The evidence considered at the time consisted of the Veteran's service treatment records and a VA examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the August 1993 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. To date, the Veteran has not submitted any additional evidence for VA to consider regarding this claim. While the Veteran's representative stated in the Veteran's application to reopen, his DRO conference, and in his NOD, that further evidence would be forthcoming, no additional evidence regarding the Veteran's left shoulder condition has been received. The Board notes that numerous records regarding the Veteran's right shoulder, knee, and ankle conditions have been submitted, however, these are not material to the Veteran's left shoulder claim. Therefore, there is no basis on which to reopen the Veteran's claim for entitlement to service connection for a left shoulder condition. 2. Low Back Condition The RO denied service connection for a low back condition in an August 1993 rating decision, finding that there was no nexus between the Veteran’s current low back pain and his in-service low back strain. The evidence considered at the time consisted of the Veteran’s service treatment records and a VA examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the August 1993 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. To date, the Veteran has not submitted any additional evidence for VA to consider regarding this claim. While the Veteran’s representative stated in the application to reopen, DRO conference, and Notice of Disagreement (NOD), that further evidence would be forthcoming, no additional evidence regarding the Veteran’s low back condition has been received. Therefore, there is no basis on which to reopen the Veteran’s claim for entitlement to service connection for a low back condition. 3. Hearing Loss The RO denied service connection for hearing loss in an August 1993 rating decision, finding that there was no current disability. The evidence considered at the time consisted of the Veteran’s service treatment records and a VA examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the August 1993 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Since the previous denial, the Veteran has undergone a new VA examination. The December 2016 examination found the Veteran's hearing to be abnormal, but not sufficiently deteriorated to be considered a disability for VA purposes. The Veteran's auditory thresholds in his right ear were measured at 30 decibels, 25 decibels, 25 decibels, 20 decibels, and 20 decibels in the 500 Hertz, 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz frequencies, respectively. Further, the Veteran's speech discrimination score in his right ear was 96 percent. The Veteran’s auditory thresholds in his left ear were measured at 35 decibels, 20 decibels, 30 decibels, 20 decibels, and 20 decibels in the 500 Hertz, 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz frequencies, respectively. Further, the Veteran’s speech discrimination score in his left ear was 100 percent. As the Veteran did not have an auditory threshold of 40 decibels in any frequency, an auditory threshold of 26 or greater in at least three frequencies, or a speech discrimination score less than 94 percent, the Veteran does not have a hearing loss disability for VA purposes. As the Veteran was originally denied service connection because he did not have a hearing loss disability for VA purposes, and the most recent examination continues to show that he does not have a hearing loss disability for VA purposes, there is no basis on which to reopen the Veteran's claim for service connection for hearing loss. 4. Hypertension The RO denied service connection for hypertension in an August 1993 rating decision, finding that there was no evidence of a current diagnosis of hypertension. The evidence considered at the time consisted of the Veteran’s service treatment records and a VA examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the August 1993 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. To date, the Veteran has not submitted any additional evidence for VA to consider regarding this claim. While the Veteran’s representative stated in the application to reopen, DRO conference, and NOD, that further evidence would be forthcoming, no additional evidence regarding the Veteran’s hypertension has been received. Therefore, there is no basis on which to reopen the Veteran’s claim for entitlement to service connection for hypertension. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder condition is remanded. In an October 2008 treatment note, the Veteran was diagnosed with a right shoulder rotator cuff tear and degenerative joint disease. In a March 1976 note in the Veteran's service treatment record, the Veteran is noted as having injured his right shoulder and had pain in his upper humerus. On these facts, VA’s duty to assist has been triggered and remand is necessary in order for the appropriate examination to be conducted. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability. The examiner is requested to opine whether it is at least as likely as not related to an in-service injury or disease, including the March 1976 injury. The reasons for any conclusions expressed should be provided. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel