Citation Nr: 22018545 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-33 832 DATE: March 29, 2022 ORDER New and material evidence having not been received, the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A final February 2016 rating decision denied service connection for hearing loss; newly received evidence does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to warrant reopening the claim for service connection for hearing loss. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from December 1956 to February 1961. This matter comes 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). In February 2022, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In a February 2016 rating decision, the RO denied the Veteran's claim for entitlement to service connection for hearing loss because the evidence did not reflect that the Veteran's current hearing loss demonstrated its onset in service or that it was caused by his noise exposure during military service. Although notified of this decision by a February 2016 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b). In March 2018, the Veteran requested to reopen the claim for service connection for hearing loss. In a May 2018 letter, the RO denied the Veteran's request to reopen the claim because the Veteran did not submit any new evidence that was material to the claim. The Veteran filed a timely notice of disagreement (NOD) and perfected the appeal following the September 2019 statement of the case (SOC). Evidence submitted since the final February 2016 rating decision consists of VA treatment records, the Veteran's statements including hearing testimony, an article on the noise exposure of B-52 aircraft on aircraft maintenance personnel, and a private audiology test submitted in October 2019. Based on the above, new and material evidence has not been received to reopen a claim for service for hearing loss. The article on the noise exposure of aircraft maintenance personnel for B-52 bombers does not indicate the Veteran's current hearing loss had its onset in service. The Veteran's statements are duplicative of his previous contentions. The private audiology test only shows that the Veteran has hearing loss, which has already been shown with previous evidence. The new evidence is therefore not material because it does not substantiate a previous unsubstantiated element of service connection. Finally, to the extent that the Veteran contends that his separation examination reflected that he had hearing loss at that time, the Board has reviewed the Veteran's service treatment records (including his examination at separation) and has found no evidence reflecting that the Veteran had hearing loss for VA purposes during his active service. By itself or when considered with the evidence previously of record, none of the recently-submitted evidence relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hearing loss, and do not raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has not been received to reopen the claim for service connection. The requirements to reopen the claim have not been met, and the appeal must be denied. As new and material evidence to reopen the previously denied claim has not been received, the benefit-of-the doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.