Citation Nr: 1815896 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 16-20 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection of right ear sensorineural hearing loss. 2. Entitlement to a compensable rating for left ear sensorineural hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD N. Pendleton, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Army from September 1951 to August 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in relevant part, declined to reopen a previously denied claim for service connection for right ear sensorineural hearing loss. In May 2016, the Veteran requested a hearing before a Veterans Law Judge by live videoconference at the RO, but he withdrew his hearing request in February 2018. The issue of entitlement to a compensable rating for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2017). FINDINGS OF FACT The unappealed June 2012 Board decision denied the Veteran's claim of service connection for right ear sensorineural hearing loss. The Veteran was notified of that decision and apprised of his appellate rights, but did not appeal. There was also no material evidence pertinent to the claims received within one year of the issuance of that decision. The evidence received since the June 2012 Board decision does not relate to an unestablished fact necessary to substantiate the claim of service connection; it is essentially cumulative of the evidence already of record. CONCLUSION OF LAW The June 2012 Board decision denying the Veteran's claim to entitlement of service connection for right ear sensorineural hearing loss is final. Evidence received since the June 2012 Board decision is not new and material. The criteria to reopen a claim for service connection for right ear sensorineural hearing loss have not been met. 38 U.S.C. § 5108, 7103, 7104 (2017); 38 C.F.R. §§ 3.156, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, a claim that has been denied in a final, unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b). 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, 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 to the Board. Anglin v. West, 203 F.3d 1343(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." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board denied service connection for right ear sensorineural hearing loss in a June 2012 decision. The evidence consisted of statements from the Veteran, VA treatment records, private treatment records, and VA examination reports. In the decision, the Board determined that the right ear hearing loss disability was not the result of a disease or injury incurred in or aggravated by service and sensorineural hearing loss may not be presumed to be. Specially, it concluded that the Veteran's right hearing loss disability first manifested many years after service, and right ear sensorineural hearing loss was not shown to a compensable degree within one year of service discharge to be presumed to have incurred in service. The Veteran did not initiate a timely appeal of the June 2012 Board decision. The Veteran was notified of that decision and of his appellate rights; however, he did not appeal the decision to the United States Court of Appeals for Veterans Claims (Court). He did not submit a motion for reconsideration or a motion to revise that decision based on clear and unmistakable error. Moreover, there was no material evidence received pertinent to the issue within one year of the issuance of the decision. On the contrary, the first communication occurred two years later, in November 2014, when the Veteran submitted an application for an "increase of service connected bilateral hearing loss." The RO contacted the Veteran in December 2014 where he confirmed that the application was a request to reopen the claim for service connection of right ear hearing loss. The June 2012 Board decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 C.F.R. §§ 3.156, 20.1100 (2017). The evidence received since the final June 2012 Board decision includes statements from the Veteran, VA records, a March 2006 buddy statements from C.K. and P.R., a February 2015 VA examination, a private September 2015 audiogram with treatment records, and other private treatment records pertaining to other conditions. A close review of these records, however, simply does not reveal any new and material information concerning the onset or etiology of the Veteran's right ear hearing loss. The Board acknowledges that the private September 2015 audiogram and treatment notes are new; however, they merely reflect worsening of his current hearing loss. They do not contribute to establishing an in-service injury, illness or event. Thus, this evidence is cumulative and redundant. The other records contain redundant information, and information pertaining to other medical conditions. The evidence received since June 2012 is cumulative and redundant of that already of record when the claim was denied. Indeed, the basis for the prior June 2012 denial was the lack of probative evidence establishing the in-service incurrence of the right ear hearing loss and it could not be presumed to be so incurred. The prior evidentiary defect has not been cured, nor has it triggered VA's duty to provide further assistance. Accordingly, the additional evidence received since the June 2012 Board decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467(1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). The claim of service connection of right ear hearing loss is not reopened. ORDER The application to reopen the claim for entitlement to service connection for right ear sensorineural hearing loss is denied. REMAND The Veteran submitted a September 2015 private audiogram and treatment notes that indicated a worsening of the service-connected left ear hearing loss disability since his February 2011 and February 2015 VA examinations. In both prior VA examinations, the Veteran had level VII hearing in the left ear. However, in the September 2015 private audiogram, the Veteran's hearing worsened to level VIII. Considering the rate of progression of his worsening hearing loss in combination with the fact that three years have passed, the Veteran should be afforded a new VA audiological examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA audiological examination to ascertain the current severity of the service-connected left ear sensorineural hearing loss disability by an appropriate medical professional, in accordance with the applicable worksheet for rating those disorders. The examination must include audiometric testing for both the Veteran's left and right ears. 2. Readjudicate the claim, considering all evidence and all applicable laws and regulations. If the benefits sought remain denied, the Veteran should be provided a supplemental statement of the case (SSOC) that contemplates both the September 2015 private audiogram as well as the updated VA audiogram on remand. An appropriate period of time should be allowed for a response. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs