Citation Nr: 20022495 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-30 118 DATE: April 1, 2020 ORDER The petition to reopen a claim of entitlement to service connection for bilateral inner ear damage is denied. FINDINGS OF FACT 1. A July 2015 rating decision denied the Veteran’s claim for service connection for bilateral hearing loss disability. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely notice of disagreement (NOD) or submit new and material evidence within one year of the July 2015 notification regarding the rating decision. 2. A March 2016 rating decision denied the Veteran’s claim for service connection for bilateral inner ear damage. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the March 2016 notification regarding the rating decision. 3. Evidence received since the March 2016 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for bilateral inner ear damage, to include bilateral hearing loss disability, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2015 rating decision that denied the Veteran’s claim for service connection for bilateral hearing loss disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 2. The March 2016 rating decision that denied the Veteran’s claim for service connection for bilateral inner ear damage is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 3. New and material evidence sufficient to reopen the Veteran’s claim for service connection for bilateral inner ear damage, to include bilateral hearing loss disability, has not been added to the record. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1970. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Central Office hearing and a transcript of the hearing has been associated with the claims file. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim where there is a final decision may be reopened if new and material evidence is submitted. 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. 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. 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. The Veteran’s claim for service connection for bilateral hearing loss disability was first denied in a July 2015 rating decision. At that time, the evidence of record consisted of service treatment records, VA treatment records, and a VA examination report. Within the VA treatment records, it shows that in August 2014, the Veteran reported hearing loss was diagnosed in 2005. In the July 2015 VA examination report, the audiologist found that the Veteran’s bilateral hearing loss disability did not have its onset in service because he had normal hearing at service discharge. VA found that there was competent evidence of a nexus between the Veteran’s current bilateral hearing loss disability and his active service and without competent evidence of a nexus, the claim had to be denied. The Veteran was subsequently notified of this determination within a July 2015 notification letter, which included his appeal rights. However, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. As such, the July 2015 rating decision is final. Thereafter, in February 2016, the Veteran submitted a claim of entitlement to service connection for bilateral inner ear damage. A March 2016 rating decision denied these claims, as there was no evidence of a current disability regarding bilateral inner ear damage and no evidence that the claimed condition was incurred in or otherwise related to active service. The Veteran was subsequently notified of this determination within a March 2016 notification letter, which included his appeal rights. However, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. As such, the March 2016 rating decision is final. In August 2016, the Veteran submitted a statement wherein he reported that he was frequently exposed to hazardous noise during active service, including during weapons training and in his military occupational specialty as a military policeman. He stated that he had been told that he had severe inner ear damage and complained about the resulting hearing loss and its effects on his life. A September 2016 statement from the Veteran’s wife reported that they dated soon after the Veteran got out of the service and that she noticed his hearing was bad then, but that she thought he was too young to have a hearing problem. She stated that after they married, she thought he had selective hearing, and also noted the numerous effects that the Veteran’s hearing loss had upon their lives since that time. VA treatment records throughout the appeal period document that the Veteran continues to have a bilateral hearing loss disability. However, such records, including specifically from June 2016 and September 2016, document that repeated otoscopies of the Veteran’s ears have been normal, without evidence of a bilateral inner ear disability. In September 2016, the Veteran requested reconsideration of his claim for service connection for bilateral inner ear damage. A November 2016 rating decision reopened and continued the prior denial of the Veteran’s claims for service connection for bilateral inner ear damage, as the evidence continued to show that the condition was not incurred in or aggravated by active service. The Veteran was subsequently notified of this decision within a December 2016 notice letter. Thereafter, in November 2017, the Veteran timely appealed the November 2016 rating decision. However, his November 2017 NOD specifically stated that he was seeking entitlement to service connection for “hearing loss” and that his claim was “originally misfiled as ear damage.” Following the issuance of a September 2018 statement of the case (SOC) which addressed the Veteran’s claims for service connection for bilateral inner ear damage, VA issued a May 2018 rating decision which denied reopening the Veteran’s claim for service connection for bilateral hearing loss disability due to a lack of new and material evidence regarding a nexus between the Veteran’s current hearing loss and active service. That same month, the Veteran submitted a VA Form 9, Appeal to the Board, regarding his claim of entitlement to service connection for bilateral inner ear damage “with hearing loss.” At the February 2020 Central Office hearing, it was noted that the Veteran’s claim to reopen his previously denied claim for service connection for bilateral inner ear damage was really about his prior claim for service connection for hearing loss. The Veteran’s wife testified that they were married within one year of his separation from active service and that she noticed he could not hear very well and she had to constantly repeat herself. She stated at the time, she thought he had selective hearing, and stated that in the years since, his hearing had gotten progressively worse. The Veteran testified that he was a military policeman during active service and that part of his duties as a guard commander in the stockade involved dealing with noisy prisoners in metal cages who made a “terrible” noise. He also noted that he used a loud whistle to correct their behavior. Additionally, he stated that he believed his hearing loss started with advanced infantry training where he was exposed to gunfire during weapons training. Finally, the Veteran’s representative asserted that new and material evidence had been submitted in the form of the lay statements and testimony of the Veteran and his wife. Having considered the above, and based upon a review of the claims file, the Board finds that the evidence submitted since the prior final rating decisions is new in that it was not previously of record. However, the Board finds such evidence is not material, as it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for a bilateral inner ear damage, to include bilateral hearing loss disability, and does not raise a reasonable possibility of substantiating the claims. In other words, the evidence of record still lacks competent evidence of a nexus between the Veteran’s claimed bilateral inner ear damage, to include bilateral hearing loss disability, and his active service. Accordingly, as the evidence submitted is not both new and material, reopening of the Veteran’s claim of service connection for a bilateral inner ear disability, to include bilateral hearing loss disability, is not warranted, and the application to reopen the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.