Citation Nr: 21025908 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-32 698 DATE: April 29, 2021 ORDER As new and material evidence has not been received, the claim to reopen entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. An October 2013 rating decision denied service connection for bilateral hearing loss; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. Thus, the decision became final. 2. Evidence received since the October 2013 rating decision is primarily redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has not been received since the October 2013 denial of service connection for bilateral hearing loss; therefore, the application to reopen the claim is denied. 38 U.S.C. §§ 1110, 5103, 5108; 38 C.F.R. §§ 3.156, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral hearing loss disability 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). The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In determining whether there has been aggravation, the statute and regulation indicate that the first question to be asked is whether there was an increase in disability. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a preexisting injury or disease will be considered to have been aggravated by service “where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease”). In other words, if there is an increase in disability during service, aggravation is presumed, and this presumption can only be rebutted with clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306(b). The October 2013 rating decision denied service connection for bilateral hearing loss because the medical evidence showed that the Veteran’s pre-existing bilateral hearing loss was not aggravated during service. Therefore, in order to reopen the claim, the record must contain evidence not previously of record at the time of the October 2013 prior final denial that relates to an unestablished fact necessary to substantiate the claim—in this case, evidence that raises the reasonable possibility that the Veteran’s pre-existing bilateral hearing loss increased in severity during active service or, to state it another way, medical evidence raising the possibility that the Veteran’s preexisting bilateral hearing loss was aggravated by service. At the time of the October 2013 prior final denial, the record contained a current diagnosis of bilateral hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385. See March 2008 VA examination. The record also included an August 2013 VA opinion where the examiner opined that the Veteran’s bilateral hearing loss clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by an in-service injury, event, or illness. The examiner reasoned that the service treatment records (STRs) contained a January 1968 induction audiogram which showed that bilateral hearing loss existed prior to service, and a February 1970 separation audiogram which showed that the Veteran’s hearing had improved since the 1968 entrance audiogram. Also of record at the time of the October 2013 prior final denial, is the Veteran’s statement that while serving in Vietnam, he was subjected to cannon fire from tanks, the Tet Offensive of 1969 at Long Bien, and a rocket landing between sand bags in a sleeping area, with the Veteran noting that when the rocket exploded he could not hear for two days. See Veteran’s October 2012 statement in support of claim. Evidence received since the October 2013 prior final denial includes an April 2018 statement from the Veteran and a September 2018 Informal Conference Report, both of which discuss the Veteran’s in-service acoustic trauma while serving in Vietnam. Additional evidence received since the 2013 denial includes: VA treatment records which contain a diagnosis of bilateral sensorineural hearing loss, military personnel records, and a March 2021 informal hearing presentation. In this case, the Board finds that the evidence added to the record since the last prior final denial in October 2013 is primarily cumulative and redundant of the evidence already of record and does not raise the reasonable possibility that the Veteran’s preexisting bilateral hearing loss underwent an increase in severity during his active duty service. Although the Veteran submitted a statement in April 2018 discussing his in-service noise exposure, this identical statement was already of record at the time of the 2013 denial, (see Veteran’s October 2012 statement) and therefore, cannot be considered new evidence. The Veteran also described his in-service noise exposure during the September 2018 Informal Conference Report; however, the Board finds that reiterating the same contentions that were made at the time of the prior final denial does not constitute new evidence. Further, although VA treatment records reflecting a diagnosis of bilateral hearing loss were added to the record since the 2013 denial, because a diagnosis of bilateral hearing loss was already of record in 2013 and conceded by the RO, these medical records are cumulative and redundant of information previously submitted and do not relate to an unestablished fact necessary to substantiate the claim. Finally, although the military personnel records are considered new evidence as the records had not been submitted to agency decisionmakers at the time of the 2013 denial, these newly submitted records are not material because the records do not relate to an unestablished fact necessary to substantiate the claim—specifically whether there was an in-service increase in the severity of the Veteran’s bilateral hearing loss disability. The Board notes that 38 C.F.R. § 3.156(c) allows for claims to be reconsidered on the merits if relevant service department records are received that existed at the time of the prior denial but were not associated with the claims file. However, after examining the personnel records, the Board finds that they are not relevant to the Veteran’s claim of service connection for bilateral hearing loss because the records pertain to administrative and personnel matters and do not contain evidence relevant to whether the Veteran’s preexisting bilateral hearing loss was aggravated by his service. (Continued on the next page)   In sum, the Board finds that the evidence received since the last prior final denial in October 2013 is primarily redundant of evidence previously submitted. Further, the newly received evidence does not raise a reasonable possibility of substantiating the claim because it does not address the possibility that the Veteran’s preexisting hearing loss was aggravated by service. Accordingly, new and material evidence has not been received and the claim to reopen service connection for bilateral hearing loss is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.