Citation Nr: 21007686 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 20-18 108 DATE: February 10, 2021 ORDER Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s previously submitted claim of entitlement to service connection for bilateral hearing loss was denied in a May 2013 rating. This decision became final because and the Veteran did not submit a timely VA Form 9 or new evidence in connection with the claim within the appeal period. 2. Evidence received subsequent to the expiration of the appeal period includes evidence that is cumulative or redundant of the evidence previously of record and does not relate to unestablished facts necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has not been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran withdrew his request for a Board hearing in a December 2020 statement. See 38 C.F.R. § 20.704(e). New and Material Evidence—Legal Criteria Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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 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). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis The RO initially denied service connection for bilateral hearing loss in a May 2013 rating decision based on a lack of an injury in service and no medical nexus linking the Veteran’s current hearing loss to service. The Veteran did not appeal this decision. At the time of the initial May 2013 denial the evidence in the record was as follows. The Veteran’s service treatment records (STRs) did not indicate any complaints or treatment for hearing loss or tinnitus while in service. While there was a significant threshold shift from the Veteran’s entrance audiogram to his separation audiogram, the Veteran’s hearing was within normal limits at separation. The Veteran provided lay statements wherein he reported that he was exposed to loud explosions, cannon fire, mortar fire, various small arms fire, was not provided with ear protection in-service, and began to experience ringing in his ears while in active duty military service. The Veteran was provided with a May 2013 VA Hearing Loss examination. The examiner found that the Veteran had a current diagnosis of bilateral hearing loss for VA purposes and was in an MOS with a high probability of noise exposure. However, the examiner opined that the Veteran’s condition was less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that comparing his entrance audiogram where the Veteran had supra-threshold hearing, to his exit audiogram there was no doubt that the Veteran was exposed to loud noise in service. Despite this, the examiner continued, while the Veteran experienced a hearing threshold shift in service, his hearing remained within normal limits at separation and therefore his hearing loss is not likely due to military service. Evidence received subsequent to the May 2013 denial, includes a March 2018 VA Hearing loss examination. Other than confirming the diagnosis of bilateral hearing loss for VA purposes, the March 2018 examiner deferred to the findings of the May 2013 examiner regarding the etiology of the Veteran’s hearing loss. The Veteran additionally submitted private audiological treatment records from the Appalachian Hearing and Speech center which confirmed his bilateral hearing loss and indicated he experienced noise exposure in service. However, the treatment records also noted that the Veteran had post-service occupational noise exposure as a truck driver and farm worker; exposure to noise from heavy equipment and power tools; and exposure to noise from recreational hunting, all without hearing protection. Additionally, these private treatment records do not provide an etiological opinion for the Veteran’s hearing loss, nor do they provide a nexus. The Veteran’s newly submitted evidence does not show an event, injury, or disease in service; does not show that the condition developed to a compensable degree within the specified time period; and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. (Continued on the next page)   Although the Veteran has provided new evidence, this evidence is not considered material, because it does not relate to an unestablished fact necessary to substantiate the claim. Specifically, to date, the Veteran has still not provided any evidence to substantiate the previously missing elements of his claim. Namely evidence creating a nexus which would link his current hearing loss disability to his military noise exposure. As such, reopening of his claim is not warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.