Citation Nr: 0002878 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-09 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran had active service from September 1957 until May 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1997, from the No. Little Rock, Arkansas, regional office (RO) of the Department of Veterans Affairs (VA) which determined that new and material evidence adequate to reopen a claim of entitlement to service connection for hearing loss had not been submitted. FINDINGS OF FACT 1. Service connection for hearing loss was denied in a rating decision in November 1979. No timely appeal was filed. 2. Evidence submitted since the RO's decision in November 1979 on the issue of service connection for hearing loss is cumulative and repetitious evidence. The additional evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has not been presented or secured sufficient to reopen the claim for service connection for hearing loss and the veteran's claim has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he worked around the flight line while on active duty which contributed to his hearing loss. Previously, service connection for hearing loss had been denied by the RO in an unappealed rating decision dated in November 1979. Accordingly, that decision is final. 38 U.S.C.A. § 7105. To reopen a finally denied claim, a veteran must submit new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.104. In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) set out a three step process to reopen a previously denied claim. First, a determination must be made whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening, a determination must be made whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, an evaluation of the merits may be made after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. 38 C.F.R. § 3.156 defines new and material evidence as: evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). The Court has further held that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where the regulatory threshold requirements for impaired hearing are not met until several years after service separation, the Board observes that the record must establish exposure to disease or injury during active military service which would adversely affect the veteran's auditory system and post-service audiological findings which meet the criteria of 38 C.F.R. § 3.385. If the veteran had "normal" hearing upon his discharge, but developed hearing loss measurably to the criteria stated in 38 C.F.R. § 3.385, and if the veteran can now establish a causal relationship between his hearing loss and service, service connected benefits will be granted. In this case, the last final disallowance was in November 1979 when the claim was denied as hearing loss for VA purposes was not of record. Evidence reviewed included service medical records and the report of a VA audiological examination in October 1979. The reports of audiometric examination at discharge and the October 1979 examination indicated hearing was within normal limits for VA purposes. Evidence submitted since the 1979 rating decision includes the personal testimony of the veteran before the RO in September 1998. The veteran testified that he never noticed that he had a problem hearing while in service, but recalled being told at retirement that he would probably receive 10 percent disability for hearing loss because he had worked on the flight line. In May 1999, the veteran wrote that he had no other evidence to submit in support of his appeal. The only evidence submitted with this claim is the veteran's testimony that he has a hearing loss due to service. As this is the same contention that the veteran expressed with his claim filed in 1979, the veteran's testimony is cumulative evidence and therefore, is not new and material evidence. No medical evidence has been submitted to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. There is no new evidence to be considered by itself or in connection with evidence previously assembled that is so significant that it must be considered in order to fairly decide the merits of the claim. New and material evidence sufficient to reopen a claim for entitlement to service connection for hearing loss has not been presented. Therefore, the rating decision in November 1979 remains final, and the claim is not reopened. ORDER New and material evidence not having been submitted, the appeal to reopen the veteran's claims of entitlement to service connection for hearing loss is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals