Citation Nr: 18139641
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-18 459
DATE:	September 28, 2018
ORDER
As new and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss, the claim to reopen is denied.
As new and material evidence has not been received to reopen the claim for service connection for tinnitus, the claim to reopen is denied.
FINDINGS OF FACT
1. In an unappealed rating decision issued in May 2005, the Regional Office (RO) denied reopening a claim for service connection for bilateral hearing loss. 
2. The evidence associated with the claims file subsequent to the May 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, is cumulative or redundant of the evidence previously of record, and is insufficient to raise a reasonable possibility of substantiating the claim.
3. In an unappealed rating decision issued in April 2005, the RO denied reopening a claim for service connection for tinnitus. 
4. The evidence associated with the claims file subsequent to the April 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, is cumulative or redundant of the evidence previously of record, and is insufficient to raise a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).
2. New and material evidence has not been received to reopen a claim of entitlement to service connection for tinnitus.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Army from June 1969 to My 1971.
New and Material Evidence 
Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104, 7105.  Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision.  See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a).
An 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 which has been disallowed, VA will reopen the claim and review it on the merits.  
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).
In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board.  Anglin v. West, 203 F.3d 1343 (2000).
Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
1. Bilateral Hearing Loss
In a January 1992 decision, the Board denied service connection for bilateral hearing loss because the evidence did not indicate an in-service incurrence.  In August 2004, the Veteran submitted a claim to reopen the appeal for service connection for bilateral hearing loss.  In an April 2005 rating decision and a May 2005 rating decision, the RO denied the claim to reopen because evidence submitted since the January 1992 Board decision was not new and material.  The Veteran did not appeal this rating decision within a year, and, as such, it became final.  
In September 2014, the Veteran filed another claim for service connection for bilateral hearing loss.  In a July 2015 rating decision, the claim was denied for lack of new and material evidence.  The Veteran timely appealed this rating decision in September 2015.  
Since the prior final decision, the May 2005 rating decision, the Veteran has resubmitted a number of documents previously submitted in association with this claim.  In May 2008, the Veteran resubmitted February 1991, March 1991 and October 2004 letters of Dr. S.G.  However, all of this evidence was of record and had already been considered at the time of the prior final decision.  The Board considered the February and March 1991 letters in the January 1992 decision denying the claim for service connection for hearing loss.  See January 1992 Board Decision at pg. 5.  Thus, this evidence, although resubmitted after the final prior decision, is not new.  As to the October 2004 letter, it was of record and previously considered by the RO at the time of the May 2005 rating decision.  As such, this evidence also is not new.
In November 2014, the Veteran submitted a letter stating that he worked as a public accountant after service.  He stated that this speaks to the assumption that his civilian career would have impacted his hearing loss and tinnitus more severely through acoustic trauma than his brief military career as an artillery officer.  He also stated that his brief career as an artillery officer serving as the Executive Officer of a heavy artillery battery in the Republic of South Vietnam is documented by the February 1990 letter of LTC A.V., which also denotes incoming fire at 1815 hours and again at 1825 hours on their position.  He indicated that the letter also documents at least one instance of his being involved in active combat.  He also stated that he was submitting the results of an independent audiometry and tympanometry, which he stated will “provide ample documentation to sustain a service connected disability attributable to loss of hearing.”  The Board notes that the February 1990 buddy statement was of record and previously considered at the time of the prior final decision.  Specifically, the February 1990 letter was associated with the file in June 1990, and it was considered by the Board in the January 1992 decision.  See January 1992 Board Decision at pg. 4.  As such, the February 1990 buddy statement, although resubmitted after the final prior decision, is not new.   
As to the private test results, the Veteran submitted a June 2014 report from Athens Hearing Aide Center as well as noted June 2014 reports regarding hearing aids provided by the Lyons VA Medical Center.  While new, this evidence is not material.  The audio report and use of hearing aids speak to a diagnosis and treatment for hearing loss.  This evidence does not speak to the unestablished fact of whether the Veteran’s hearing loss was incurred in service.  As such, this evidence does not have a reasonable possibility of substantiating the claim and is therefore not material.
Along with the November 2014 letter, the Veteran also submitted service treatment records from November 1970 regarding incoming fire.  However, these treatment records were available at the time of the prior final decision and are therefore not considered to be new.  
In the September 2015 notice of disagreement, the Veteran stated that he served in Vietnam as an Executive Officer of heavy artillery battery.  He described his duties as laying guns on the correct azimuth to fire and maintaining control of all fire missions.  He stated that this had to be accomplished by hearing all communications between Dire Direction Center and guns firing.  He stated that he served in this position for over seven months.  He stated that his unit was ordered to various positions and constantly under enemy mortar, which also aggravated these conditions.  He stated that his civilian occupation was an accountant and that there was no machinery that would contribute to hearing loss.  He also stated that he was not subject to loud noise in his civilian position.  He stated that in December 2014, he was again diagnosed with hearing loss and tinnitus and fitted with two hearing aids.  He also submitted June 2014 records from Athens Hearing Center regarding his hearing loss.  
In the April 2016 Form 9, the Veteran restated that he served in combat as an artillery officer and was subject to battery noise and a concussion.  He stated that he was in combat for over 180 days.  He stated that he suffered hearing loss at least twice and that his hearing came back.  He stated that he was issued hearing aids at Lyons Medical Center. 
The lay statements provided by the Veteran in the September 2015 notice of disagreement and April 2016 Form 9 regarding his duties in service were already of record at the time of the prior final decision.  Specifically, the Veteran stated in a September 1, 1981, statement that on discharge from active duty, he was made aware that his hearing had decreased and that his hearing should be checked.  In this statement, he also indicated that a doctor had attributed this to being exposed to the fire of the guns (8in and 175mm artillery pieces) when serving in Vietnam from November 1970 to discharge.  As the Veteran has only restated statements that were of record at the time of the prior final decision, the statements in the September 2015 notice of disagreement and April 2016 Form 9 regarding his in-service duties and the cause of his hearing loss are not new.  
In May 2016, the June 2014 reports from Athens Hearing Aide Center were associated with the file once again.  As discussed, these reports only indicate a diagnosis and are not material to the issue in dispute, an in-service incurrence.  
As the evidence submitted regarding the claim for service connection for bilateral hearing loss is not new and material, the low threshold for meeting the criteria for reopening have not been met.  Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010).  Accordingly, the claim of entitlement to service connection for bilateral hearing loss is not reopened.  38 C.F.R. § 3.156(a).
2. Tinnitus
In the January 1992 decision, the Board also denied service connection for tinnitus because the evidence did not indicate an in-service incurrence.  In August 2004, the Veteran submitted a claim to reopen the appeal for service connection for tinnitus.  In an April 2005 rating decision, the RO denied the claim to reopen because evidence submitted since the January 1992 Board decision was not new and material.  The Veteran did not appeal this rating decision within a year, and, as such, it became final.  
In September 2014, the Veteran filed another claim for service connection for tinnitus.  In a July 2015 rating decision, the claim was denied for lack of new and material evidence.  The Veteran timely appealed this rating decision in September 2015.  
Evidence submitted since the prior final decision, the April 2005 rating decision, includes the November 2014 written statement previously discussed.  As noted, in this written statement, the Veteran indicated that he worked as a public accountant after service.  He stated that it speaks to the assumption that his civilian career would have impacted his hearing loss and tinnitus more severely through acoustic trauma than his brief military career as an artillery officer.  Additionally, in the April 2016 Form 9, the Veteran stated that he suffers from ringing in the ears, which has gotten progressively worse.  He also stated that he believes his tinnitus is the result of noise from 175 mm guns and 8-inch howitzers.  
However, the Veteran’s statements that his tinnitus is due to service are not new.  Such statements were considered in the January 1992 Board decision.  Specifically, the Board noted in the January 1992 decision, which the RO relied on in the April 2005 rating decision denying reopening of the claim, that the Veteran pinpointed his tinnitus as starting in service in the mid-1970s.  See January 1992 Board Decision at pg. 6.     
As the evidence submitted regarding the claim for service connection for tinnitus is not new and material, the low threshold for meeting the criteria for reopening have not been met.  Shade v. Shinseki.  Accordingly, the claim of entitlement to service connection for tinnitus is not reopened.  38 C.F.R. § 3.156(a)

 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Smith, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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