Citation Nr: 21073086 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-54 906 DATE: December 7, 2021 ORDER The application to reopen a previously denied claim of entitlement to service connection for a right shoulder disability is denied. The application to reopen a previously denied claim of entitlement to service connection for a bilateral knee disability is denied. Service connection for bilateral hearing loss is denied. Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. In a March 1994 rating decision, a Department of Veterans' Affairs (VA) Regional Office (RO) denied the Veteran's claims of entitlement to service connection for a right shoulder disability and a bilateral knee disability; he was advised of the RO's decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the March 1994 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. The evidence received since the last prior denial of service connection for a right shoulder disability is cumulative and redundant and does not relate to an unestablished fact necessary to substantiate the claim. 4. The evidence received since the last prior denial of service connection for a bilateral knee disability is cumulative and redundant and does not relate to an unestablished fact necessary to substantiate the claim. 5. The evidence actually or constructively of record at the time of the Veteran's death does not establish that he had a bilateral hearing loss "disability," as defined by VA regulation, at any time during or proximate to the pendency of his claim. 6. The Veteran's death certificate reflects that he died in March 2015 as a result of severe atherosclerotic coronary vascular disease with coronary thrombosis, with pulmonary adenocarcinoma, hypertension, and cardiomegaly listed as contributing conditions. 7. A disability of service origin is not shown to have caused or contributed to the Veteran's death. CONCLUSIONS OF LAW 1. The March 1994 rating decision that denied service connection for a right shoulder disability and a bilateral knee disability is final. 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 20.1103 (1994). 2. New and material evidence has not been received to reopen the previously denied claim for service connection for a right shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has not been received to reopen the previously denied claim for service connection for a bilateral knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 5. The criteria for an award of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1952 to June 1955, and in the United States Air Force from December 1956 to October 1960. His decorations included the National Defense Service Medal, the Parachutist Badge, and the Armed Forces Longevity Service Award. Unfortunately, he died in March 2015. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2021, the appellant and her daughter testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The July 2015 rating decision, in pertinent part, denied the claim for service connection for bilateral hearing loss, as well as the application to reopen previously denied claims for service connection for a right shoulder disorder and a bilateral knee disorder. At the March 2021 Board hearing, the appellant explicitly waived substitution and indicated that she wished to proceed with those claims as an accrued benefits claimant. As such, adjudication of the hearing loss, right shoulder, and knee claims will be limited to consideration of the evidence actually or constructively of record at the time of the Veteran's death. In June 2021, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See August 2021 supplemental statement of the case. The Board notes that the appellant was previously represented by Disabled American Veterans; however, at the March 2021 Board hearing, she indicated on the record that she had revoked that organization's power of attorney. The appellant has not appointed another representative since and is currently proceeding pro se. New and Material Evidence Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. The application to reopen a previously denied claim of entitlement to service connection for a right shoulder disability is denied. 2. The application to reopen a previously denied claim of entitlement to service connection for a bilateral knee disability is denied. The Veteran sought to reopen his previously denied claims for service connection for a right shoulder disability and a bilateral knee disability. By way of background, a March 1994 rating decision denied service connection for a right shoulder disability and bilateral knee disability. The Veteran was notified of the decision, and of his appellate rights, but he did not initiate an appeal during the one-year period following the mailing of notice of that decision. Nor was any new and material evidence received during that one-year period. As a result, the RO's decision became final. 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 20.1103 (1994). Evidence of record at the time of the March 1994 rating decision included the Veteran's assertions that he injured his right shoulder during his service in the Army, and that he injured his knees during his service in the Air Force. See December 1993 VA Form 21-526. The evidence showed that he had complaints of knee pain and had been diagnosed with osteoarthritis. See, e.g., November 1993 private treatment record. The March 1994 rating decision denied service connection for a right shoulder knee and a bilateral knee injury because the etiology of the Veteran's injuries could not be confirmed (i.e., because there was no nexus to service). A thorough review of the evidence added to the record since the prior denial does not reveal any new evidence which tends to show that the Veteran's right shoulder and bilateral knee disabilities were related his service. In this regard, evidence received since the March 1994 rating decision shows diagnoses of right shoulder and bilateral knee arthritis. This evidence is not new because it is cumulative of a November 1993 private treatment record noting a diagnosis of osteoarthritis. The evidence received since the March 1994 rating decision also includes assertions to the effect that the Veteran injured his knees in service. See, e.g., January 2015 VA Form 21-4138 (Statement in Support of Claim); October 2000 treatment record (reflecting the Veteran's report that he injured his right knee in the 1960s). This evidence is not new because it is cumulative of the Veteran's December 1993 assertions that he injured his right during his service in the Army, and that he injured his knees during his service in the Air Force. Based on the foregoing, the Board must find that the evidence received since the last prior denial is cumulative and redundant and does not relate to an unestablished fact necessary to substantiate the claims. As such, new and material evidence has not been received in accord with 38 C.F.R. § 3.156(a), and the Board does not have authority to consider the merits of the underlying service connection claims. The applications to reopen the previously denied claims of entitlement to service connection for a right shoulder disability and a bilateral knee disability are denied. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the of filing the claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for bilateral hearing loss is denied. The Veteran sought to establish service connection for bilateral hearing loss. The appellant, who is an accrued benefits claimant, asserts that the Veteran had bilateral hearing loss that started during service due to exposure to hazardous noise from planes. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board must conclude that the Veteran did not have a bilateral hearing loss disability, as VA defines that term, at any time during the pendency or proximate to the filing of his claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the 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. In this case, while an October 2014 VA treatment record noted that the Veteran had bilateral, mild to moderate/severe, sensorineural hearing loss, medical records during the appeal period did not establish that he ever had a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. The Board notes that the Veteran was competent to report his history of in-service noise exposure and problems with decreased auditory acuity during his life. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno, 6 Vet. App. at 469-70. However, the presence of a hearing loss "disability" for VA purposes is not something that is capable of lay observation; rather, such a finding requires professionally administered test results satisfying the criteria set out at 38 C.F.R. § 3.385. In the absence of evidence of a hearing loss disability pursuant to 38 C.F.R. § 3.385, service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for the cause of the Veteran's death is denied. The appellant seeks to establish service connection for the cause of the Veteran's death. She maintains, in essence, that the Veteran's cause of death was related to his military service. Specifically, she contends that his terminal heart disease and lung cancer were related to in-service exposure to chemicals from pesticides. See, e.g., March 2021 Board hearing transcript. To establish service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). Here, the Veteran's death certificate lists the immediate cause of his death as severe atherosclerotic coronary vascular disease with coronary thrombosis, with pulmonary adenocarcinoma, hypertension, and cardiomegaly as other significant conditions. He was not service connected for any of these disabilities at the time of his death. The appellant has not presented evidence to suggest that the Veteran's terminal heart disease, lung cancer, and/or hypertension may be associated with service, and no such evidence otherwise appears in the record. An October 2003 VA treatment record noted that the Veteran's coronary artery disease was diagnosed in July 2003. A February 2015 private treatment record noted that the Veteran was recently diagnosed with adenocarcinoma of the lungs. This evidence weighs against a finding that the Veteran's heart disability and lung cancer began during service. The Board notes that there is no medical opinion of record that links the Veteran's cause of death or significant conditions contributing to death to active duty service. VA' duty to assist an appellant in fully developing a cause of death claim may include obtaining a medical opinion when necessary to make a decision on the claim. Although no medical opinion has been obtained in this case, the Board finds that the duty to obtain one under section 5103A(a) has not been triggered, as there was no "reasonable possibility" that a medical opinion would aid in substantiating the appellant's claim for service connection for the cause of the Veteran's death. See Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008) ((quoting DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008)). In this regard, while the appellant asserts that the Veteran's terminal heart disease and lung cancer are related to in-service exposure to chemicals from pesticides, she is not able to specify which chemicals may have caused the Veteran's heart disease or lung cancer. A medical opinion obtained under such circumstances would be speculative at best. Under the circumstances, the Board must find that there is no "reasonable possibility" that a medical opinion would aid in substantiating the appellant's claim. The Board recognizes that the appellant believes the Veteran's cause of death was related to his military service. While the appellant is competent to report what she observed about the Veteran's health or what he informed her about events in service, she is not shown to have the specialized training necessary to offer a competent opinion on such a complex matter as the cause of the Veteran's death. See Jandreau, 492 F.3d 1372. While the Board is sympathetic to the appellant's loss, it must rely on the competent, credible, and probative evidence in making its determination. In the present case, the competent and most probative evidence fails to reach the level of equipoise in showing a link between the Veteran's active-duty service and his terminal conditions, to include heart disease and lung cancer, that caused his death, either directly or contributorily. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.