Citation Nr: 21008990 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-17 417 DATE: February 18, 2021 ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for bilateral hearing loss, and the appeal is denied. FINDINGS OF FACT 1. In a June 2007 rating decision, entitlement to service connection for bilateral hearing loss was denied. The Veteran did not perfect an appeal as to this denial, nor was new and material evidence received within one year. 2. The service treatment records received after the June 2007 rating decision are not “relevant” and do not warrant reconsideration of the previously denied claim under 38 C.F.R. §3.156(c). 3. Additional VA treatment records and VA hearing testimony received after the June 2007 rating decision, although new, are not material evidence that relates to an unestablished fact necessary to reopen his claim. CONCLUSION OF LAW The June 2007 rating decision is final. New and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to October 1968, from October 1990 to August 1991, and from March 2003 to November 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening this claim. The Veteran testified before the undersigned Veterans Law Judge during a September 2019 videoconference hearing, a transcript of which is associated with the claims file. Having reviewed the records, the Board finds that there has been substantial compliance with the previous Board remand as the requested VA treatment records have been obtained in accordance with the February 2020 Board remand instruction. Stegall v. West, Vet. App. 268, 270-71 (1998). Upon readjudication, the RO granted the claim of entitlement to service connection for residuals of bilateral toenail removal pursuant to a December 2020 rating decision, so that claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating and effective date, is separate from any prior appeal regarding entitlement to service connection). In this case, the Veteran has not disputed either the effective date for the award of service connection or the rating assigned for this condition. Neither the Veteran nor his representative has raised any issues with the duty to notify or the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1383 -84 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review it. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. Material evidence means 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. 38 C.F.R. § 3.156 (a). Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384; see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim for entitlement to service connection for bilateral hearing loss. The bilateral hearing loss claim has been denied several times, beginning in February 1990. The last final decision was in June 2007, which denied the claim, because there was no evidence showing his pre-existing hearing loss condition was permanently aggravated by his active duty service. The Board finds the June 2007 rating decision became final. The Veteran did not file a Notice of Disagreement within one year of that rating decision or submit any additional evidence related to this claim that is new and material within a year of this rating decision. 38 C.F.R. § 3.156 (b), 38 C.F.R. § § 20.1103. Since the June 2007 rating decision, additional evidence has been associated with the claims file, to include service treatment records, VA treatment records, and the Board hearing testimony. Initially, with regards to the additionally associated service treatment records, the Board has considered the applicability of 38 C.F.R. § 3.156 (c)(1), which provides that, at any time after VA issues a decision on a claim, if it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include service records that are related to a claimed in-service event, injury, or disease. Importantly, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that “[s]ection 3.156(c) only applies ‘when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision.’ New and Material Evidence, 70 Fed. Reg. at 35,388.” Blubaugh v. McDonald, 773 F.3d. 1310 (Fed. Cir. 2014). Most recently, the Federal Circuit has found that, in order to be “relevant” under 38 C.F.R. § 3.156 (c)(1), the service record at issue must speak to a matter in dispute and, therefore, affect the outcome of the case. Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). In this regard, no relevant service treatment records have been received since the issuance of June 2007 rating decision. The additionally associated service treatment records merely document “bilateral hearing loss—negative for hearing loss,” which does not touch on the matter of permanent aggravation of his pre-existing hearing loss by his active duty service (but rather, merely focuses on the absence of the presence of the Veteran’s hearing loss condition), which is the critical issue in dispute. Thus, the Board finds his service treatment records are not relevant as contemplated by 38 C.F.R. § 3.156 (c)(1) as defined by reviewing courts and, thus, there is no basis to reconsider his claim. Additionally, the Board finds VA treatment records and Board hearing testimony are not material, although new. His VA treatment records only document the Veteran’s complaints, treatments, consultations provided for hearing aids (to include multiple hearing aid repairs) for his hearing loss condition, and his Board hearing testimony provides only that his medical records show hearing loss in 1998 (which was already noted in the previous rating decision that denied his service connection claim) and that he was prescribed with VA hearing aids post-service, but do not include any evidence showing permanent aggravation of his pre-existing hearing loss condition by his active duty service. For these reasons, the Board finds that new and material evidence has not been received, and that reopening the claim for service connection for bilateral hearing loss is not warranted. See 38 C.F.R. § 3.156. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.