Citation Nr: 21071549 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-63 841 DATE: November 30, 2021 ORDER The petition to reopen a previously denied claim for service connection for a right ear hearing loss is denied. FINDINGS OF FACT 1. In an unappealed October 2009 rating decision, the RO denied the Veteran's original claim for right ear hearing loss. 2. The evidence received since the October 2009 rating decision is new, but not material, and does not raise a reasonable possibility of substantiating service connection for service connection for a right ear hearing loss. CONCLUSIONS OF LAW 1. The October 2009 rating decision denying service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103. 2. The evidence received since the October 2009 rating decision is new but not material, and the criteria to reopen the service connection claim for right ear hearing loss are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1972 and from June 1972 to September 1976. The Board notes that May 2021 correspondence indicated that the Veteran called in response to the April 23, 2021 notice he received and asked to withdraw his appeal. This note added please review "27-0820 submitted in lieu of VAI." The Report of General Information (27-0820) added to the claims file on August 6, 2021 noted that the Veteran was contacted by phone and confirmed he wanted to cancel his hearing. In an October 2021 letter, the Board requested clarification from the Veteran as to whether he wished to withdraw his appeal for the issue right ear hearing loss; however, to-date, he failed to respond. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 19.55. Withdrawal of an appeal is only effective where the withdrawal is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)). The Board does not wish to disregard the Veteran's stated intent, but given the law summarized above, the Veteran's phone call to withdraw his claim is insufficient to warrant a dismissal. Under the criteria of 38 C.F.R. § 19.55, the withdrawal of service connection for right ear hearing loss are not met. New and Material Evidence Rating decisions are final and binding based on 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 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2020). If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received 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 decision makers. 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). Here, an October 2009 rating decision denied the Veteran's original claim for service connection for bilateral hearing loss. The denial of the right hearing loss was due to preexisting hearing loss that was not aggravated during service. Specifically, evidence considered at the time included the Veteran's service treatment records containing both entrance and separation audiograms, his lay statements confirming that he had preexisting hearing loss at the time of induction, and medical treatment records showing no complaints of hearing loss until 2002, many years after separation from service. The Veteran submitted a timely NOD and a SOC was issued in April 2011; however, the Veteran failed to perfect his appeal. Accordingly, the October 2009 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. Evidence submitted subsequent to the October 2009 rating decision includes additional lay assertions from the Veteran, private audiograms showing hearing loss in the right ear, and a March 2015 VA audiology examination report, in which the examiner opined that the preexisting right ear hearing loss that was noted upon entrance to service was not aggravated beyond its natural progression during service. Although the examination report is new, it cannot serve to reopen as the opinions are unfavorable to the Veteran. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Therefore, new and material evidence was not received to reopen the previously denied service connection claim for right ear hearing loss, and the petition to reopen remains denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.