Citation Nr: 21042689 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-06 247 DATE: July 13, 2021 ORDER New and material evidence having not been received, the claim for service connection for bilateral hearing loss is not reopened; the appeal is denied. FINDINGS OF FACT 1. An April 2012 rating decision denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran did not appeal that decision in a timely manner, nor was any new and material evidence submitted within the appeal period. 2. Since the April 2012 rating decision, the Veteran has not presented evidence that is both new and material. The evidence is cumulative and redundant of the evidence of record at the time of the rating decision. CONCLUSIONS OF LAW New and material evidence having not been received, the criteria for reopening the Veteran's previously denied claim for service connection for a bilateral hearing loss disability have not been 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 April 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO). New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to the claim since the last final disallowance of the claim. 38 U.S.C. § 5108. New evidence means existing 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). The credibility of evidence is presumed for purposes of reopening a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The claim for service connection for bilateral hearing loss is not reopened. Evidence received since the April 2012 rating decision has not met the low threshold of new and material evidence. The service connection claim was initially denied in January 2008. Thereafter, in an April 2012 rating decision, the RO reopened the claim but denied the Veteran's claim for hearing loss, finding that medical evidence failed to provide a link or nexus between the Veteran's hearing loss and his military service. The Veteran was provided notice of this decision and his appellate rights, but did not appeal the decision nor submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. Since April 2012, evidence has been added to the file regarding the Veteran's hearing loss disability. However, none of it is both new and material. For example, at the time of the April 2012 decision, the record contained statements from the Veteran regarding his in-service noise exposure, as well as a tympanic membrane perforation. He reported at his October 2011 VA examination that he had been exposed to M-16, M-60, and 108 recoilless fire and other rounds, blasts, and vehicle noises, as well as being in proximity to where a live smoke round went off, all without hearing protection. He also reported a history of tympanic membrane perforation, dating back to the approximate time of his discharge. Since that time, the only evidence received regarding his hearing loss disability has been further descriptions of his in-service noise exposure and discharge perforation. For example, his December 2016 Notice of Disagreement contains a description of noise exposure to ammo, artillery, and loud weapons. His January 2017 VA Form 9 contains descriptions of exposure to M-16, M-60, and 108 recoilless fire and artillery blasts, as well as "a hole in his right ear drum." In sum, what was lacking at the time of the previous final denial, and is still lacking, is competent evidence that the Veteran's bilateral hearing loss is related to or has a nexus to the Veteran's in-service noise exposure. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.