Citation Nr: 20021362 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-31 079 DATE: March 25, 2020 ORDER New and material evidence has not been received to reopen the claim for entitlement to service connection for right ear hearing loss disability, and the application for reopening the claim is denied. FINDINGS OF FACT 1. An April 2011 rating decision denied service connection for a bilateral hearing loss disability based on the preponderance of the evidence being against a finding that the Veteran had bilateral hearing loss and noted that the Veteran failed to appear for a VA examination in connection with the claim. In the April 2011 notification letter, the Veteran was notified of this decision, which included his appellate rights. He did not appeal the decision or submit new and material evidence during the applicable one-year appellate period. 2. A May 2013 rating decision reopened the claim for service connection for bilateral hearing loss disability based on a finding that the evidence added to the record was new and material. However, the service connection claim was denied within that rating decision based on a finding that the Veteran had preexisting right ear hearing loss disability that was not aggravated during service. In the May 2013 notification letter, the Veteran was notified of this decision, which included his appellate rights. He did not appeal the decision or submit new and material evidence during the applicable one-year appellate period. 3. Evidence received since the May 2013 rating decision is cumulative or redundant of the evidence of record at the time of that decision and does not relate to an unestablished fact necessary to substantiate the claim for service connection for right ear hearing loss disability. CONCLUSIONS OF LAW 1. The April 2011 and May 2013 rating decisions denying service connection for a right ear hearing loss disability are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen a claim for service connection for a right ear hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1974 to August 1974 and March 1977 to March 1980. On the VA Form 9, Appeal to the Board, the Veteran documented that he wanted a hearing before the Board. In January 2020, the Veteran was informed of his scheduled hearing in March 2020. The record shows that the Veteran did not appear for the hearing. Accordingly, the Veteran’s hearing request is deemed to be withdrawn. Whether new and material evidence has been received to reopen the claim for service connection for right ear hearing loss disability If a claim for 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Only evidence presented since the last final denial on any basis (whether by the Board or Regional Office (RO), and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the agency of original jurisdiction’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. In January 2011, the Veteran filed a claim for service connection for a bilateral hearing loss disability. In April 2011, the RO denied the service connection claim due to there not being diagnosis for the disability and there was no hearing loss showing in-service. At the time of the April 2011 rating decision, the RO reviewed the Veteran’s application for compensation; his service treatment records; and VA treatment records from the Corpus Christi. The RO documented that it had scheduled the Veteran for a VA examination, and the Veteran had not appeared for the examination. The service treatment records contained audiograms from May 1983 and June 1991, and the Veteran denied a history of hearing loss in the January 1987 Report of Medical History. The Veteran was notified of this rating decision, as well as his appellate rights in an April 2011 letter. However, the Veteran did not appeal the rating decision or submit new and material evidence in the one-year period following notification of the rating decision. Thus, that rating decision became final. In a September 2012 submission, the Veteran requested his claim for service connection for bilateral hearing loss disability be reopened. The Veteran was afforded a VA examination in April 2013, which showed he had a bilateral hearing loss disability. However, the VA examiner concluded that the preexisting bilateral hearing loss (which was documented on a December 1976 Report of Medical Examination) was not aggravated beyond the normal progression in service. Thus, the RO denied the claim. The Veteran was notified of this rating decision, as well as his appellate rights, in a May 2013 letter. The Veteran did not appeal the rating decision or submit new and material evidence in the one-year period following notification of the rating decision. Thus, that rating decision became final. In March 2017, the Veteran filed an application to reopen the claim for service connection for a bilateral hearing loss disability. The RO initially denied reopening the claim in April 2017. The Veteran filed another application to reopen the claim in September 2017, and the RO continued the denial in December 2017. The Veteran then submitted a notice of disagreement in February 2018, and VA provided the Veteran with a VA examination in May 2018. In a May 2018 rating decision, the RO reopened the claim for service connection for a bilateral hearing loss disability and granted service connection for left ear hearing loss disability but denied service connection for right ear hearing loss disability. The Veteran perfected his appeal for the right ear hearing loss disability. Since the May 2013 rating decision, the Veteran has continued to assert that the source of his right ear hearing loss disability is due to exposure to gunfire, artillery, and explosives while in service. However, this evidence is not new, as the Veteran had made this assertion at the time of the April 2011 and May 2013 rating decisions. Furthermore, the Veteran was afforded another VA examination in May 2018. During that VA examination, the audiologist opined that the Veteran’s right ear hearing loss disability is not related to his time in service. Specifically, the examiner stated there was not a permanent positive threshold shift greater than the normal measurement variability at any frequency between 500 and 6000 Hertz. The examiner concluded that the Veteran’s preexisting right ear hearing loss was not aggravated beyond the normal progression during his military service. These same facts were in the record at the time of the May 2013 rating decision, where a different examiner determined that the pre-existing right ear hearing loss disability was not aggravated beyond the normal progression during service. Thus, the evidence added to file since the May 2013 rating decision is cumulative and redundant of evidence that was previously considered. Thus, the Veteran has still not brought forth competent evidence that his pre-existing right ear hearing loss disability at service entrance was aggravated beyond the normal progression during service, which was the missing element at the time of the May 2013 rating decision. Accordingly, the evidence added to the file since the May 2013 rating decision is not new and material evidence to reopen the claim for service connection for right ear hearing loss disability. Since the evidence of record does not raise a reasonable possibility regarding the claim for service connection for right ear hearing loss disability, the Board finds that the application to reopen the claim for service connection for a right ear hearing loss disability is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.