Citation Nr: 19111908 Decision Date: 02/14/19 Archive Date: 02/14/19 DOCKET NO. 17-28 061 DATE: February 14, 2019 ORDER New and material evidence has not been submitted to reopen the claim of entitlement to service connection for tinnitus and the appeal is denied. FINDINGS OF FACT 1. The final April 2008 rating decision denied the Veteran’s claim for service connection for tinnitus; although notified of the decision, the Veteran did not express an intent to appeal the decision, and new and material evidence was not added within one year of this decision. 2. Additional evidence associated with the claims file since the April 2008 rating decision is cumulative and redundant of the evidence of record at the time of the prior denial, it does not relate to unestablished facts necessary to substantiate his claim for service connection for tinnitus, and it does not raise a reasonable possibility of substantiating the claim CONCLUSIONS OF LAW 1. The April 2008 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the April 2008 rating decision is not new and material, the criteria for reopening the Veteran’s claim for service connection for tinnitus are not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to July 1974. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida. New and material evidence has not been submitted to reopen the claim of entitlement to service connection for tinnitus and the appeal is denied. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104 (a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for service connection for tinnitus was denied in an April 2008 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran’s condition was related to his military service. At the time of the May 2007 rating decision, the evidence of record included service treatment records, post-service VA treatment records, the Veteran’s lay statements, and the March 2008 VA audiological examination report. The Veteran was notified of the decision and his appellate rights in April 2008. However, he did not file a notice of disagreement in response to the rating decision. No further communication regarding his claim was received until November 2016, when VA received his petition to reopen. Therefore, the previous April 2008 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the April 2008 rating decision includes additional post-service VA treatment records, the February 2017 VA audiological examination report, and the Veteran’s statement submitted with his April 2017 Notice of Disagreement. The new evidence of record does not contain any indication that the Veteran’s tinnitus is related to his military service. In addition, the Veteran’s current claim indicating that this condition is related to service is simply a reiteration of his previously considered claim and assertions, and the additional evidence of record does not further suggest that his tinnitus was related to noise exposure during active duty. The Board acknowledges that the additional evidence submitted by the Veteran indicates that he was exposed to acoustic trauma while working with artillery and weapons as a tank driver. He has further stated that hearing protection was not consistently provided during service. However, the Veteran provided similar statements in November 2007, which were considered at the time of the April 2008 rating decision. Similarly, the February 2017 VA audiologist did not find the Veteran’s tinnitus to be related to his in-service noise exposure. Thus, no evidence has been submitted to support a relationship between this condition and service. The Board finds that Veteran’s assertions cannot be considered new and material evidence, as they were previously before the RO at the time of its prior decision. In sum, as the evidence submitted since the April 2008 rating decision is not new and material, the claim for service connection for tinnitus is not reopened and the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel