Citation Nr: A21019149 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 210210-134401 DATE: December 1, 2021 ORDER Entitlement to an effective date prior to June 11, 2020, for the award of service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Bilateral hearing loss originated during active service. 2. An April 2014 rating decision denied service connection for bilateral hearing loss. The Veteran did not submit a notice of disagreement with that decision, and it is final. 3. In June 2020, the Veteran submitted a Decision Review Request: Supplemental Claim Supplemental Claim Application, VA Form 20-0995, seeking to reopen the claim of entitlement to service connection for bilateral hearing loss which was received by the Department of Veterans Affairs (VA) on June 11, 2020. CONCLUSION OF LAW The criteria for an effective date prior to June 11, 2020, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.2500. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1966 to December 1967. He served in the Republic of Vietnam. In January 2021, the Agency of Original Jurisdiction denied an effective date prior to June 11, 2020, for the award of service connection for bilateral hearing loss disability. In a February 2021 Decision Review Request: Board Appeal, (Notice of Disagreement), VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the January 2021 Agency of Original Jurisdiction decision on appeal. 38 C.F.R. § 20.301. Earlier Effective Date The Veteran asserts that March 20, 2013, the date of VA's receipt of his initial claim for service connection, is warranted for the award of service connection for bilateral hearing loss. For supplemental claims received more than one year after the date on which the Agency of Original Jurisdiction issued a decision, the effective date shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the supplemental claim. 38 U.S.C. § 5110(a)(3); 38 C.F.R. § 3.2500(h)(2). An April 2014 rating decision denied service connection for bilateral hearing loss as "there is no medical link between your hearing loss and service" and "there is no evidence that disabling sensorineural hearing loss manifested itself to a compensable degree within a year of service." The Veteran did not submit a notice of disagreement with the adverse decision. The evidence upon which the April 2014 rating decision was formulated may be briefly summarized. The service treatment records do not refer to bilateral hearing loss. A December 2013 VA audiology examination report states that the Veteran reported a temporary hearing loss in 1966 or 1967 following exposure to an explosion and head trauma with loss of consciousness. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner concluded that "his hearing loss is less likely as not caused by or a result of in-service noise exposure or shift in hearing between entrance and separation." In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304 (b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence pertaining to the issue of entitlement to service connection for bilateral hearing loss disability was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the April 2014 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). In June 2020, the Veteran submitted a Decision Review Request: Supplemental Claim Supplemental Claim Application, VA Form 20-0995, seeking to reopen the claim of entitlement to service connection for bilateral hearing loss. The supplemental claim was received by VA on June 11, 2020. In November 2020, the Agency of Original Jurisdiction determined that new and relevant evidence had been received to reopen service connection for bilateral hearing loss disability and granted service connection for that disability effective June 11, 2020. Bilateral hearing loss originated during active service. The June 2020 Decision Review Request: Supplemental Claim Supplemental Claim Application, VA Form 20-0995, seeking to reopen the claim of entitlement to service connection for bilateral hearing loss was received on June 11, 2020, more than one year following the April 2014 rating decision denying service connection. The record contains no application to reopen the claim of service connection for bilateral hearing loss disability received prior to June 11, 2020. Therefore, the appropriate effective date for the award of service connection for bilateral hearing loss is June 11, 2020, the date of receipt of the June 2020 supplemental claim. Given this finding, the Board concludes that the preponderance of the evidence is against the assignment of an effective date prior to June 11, 2020, for service connection for bilateral hearing loss. 38 U.S.C. § 5110; 38 C.F.R. § 3.2500. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.