Citation Nr: 21022704 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-29 338 DATE: April 19, 2021 ORDER The application to reopen a claim for entitlement to service connection for hearing loss is denied. FINDINGS OF FACT 1. In a September 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss. 2. The Veteran did not perfect an appeal of the September 2013 rating decision. 3. Additional evidence was not received during the one-year appeal period following the September 2013 rating decision. 4. Evidence added to the record since the final September 2013 rating decision is either duplicative of the evidence of record at the time of the prior, final denial or does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The September 2013 decision denying the Veteran’s first claim of service connection for bilateral hearing loss is final. 38 U.S.C. §§ 5104, 7105 (2018); 38 C.F.R. §§ 3.103, 20.1103 (2018). 2. New and material evidence has not been received for the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1961 to February 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in February 2018. The Veteran’s wife has been substituted as the appellant in this matter. The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2020 and a transcript of the hearing has been associated with the claims file. The Veteran was represented by Disabled American Veterans at the time of his death; however, no VA Form 21-22 or VA Form 21-22a has been submitted to appoint any specific representative for the appellant. As such, the appellant is currently unrepresented in this appeal. The application to reopen a claim for entitlement to service connection for bilateral hearing loss is denied In February 2012, the Veteran filed a claim entitlement to service connection for hearing loss, claiming that noise from engines that filled rockets caused hearing loss. See February 2012 claim for benefits. This claim was denied in September 2013. The Veteran was notified of the decision in a September 28, 2013, letter. This letter including a VA Form 4107, which informed him of his procedural and appellate rights. The Veteran did not initiate an appeal of this decision. Additional evidence was not actually or constructively associated with the claims file during the year after the September 2013 letter. Thus, the September 2013 decision became final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.103; 20.1103. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 evidence means existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156 (a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The September 2013 rating decision denied the Veteran’s claim for service connection for bilateral hearing loss because there was no nexus between his service and his hearing loss. Although the November 2016 rating decision on appeal found that new and material evidence has been received, the Board is obligated to review that determination. Jackson v. Principi, 265 F.3d 1366, 1370 (Fed. Cir. 2001). At the time of the September 2013 rating decision, the record contained statements from the Veteran about his hearing loss, VA treatment records, Service Personnel Records (SPRs), Service Treatment Records (STRs), private treatment records, and an April 2012 report from a VA examiner diagnosing the Veteran with bilateral hearing loss but opining that the Veteran’s hearing loss was less likely than not related to his active duty service. In August 2016, the Veteran filed an application to reopen his claim for entitlement to service connection for hearing loss. As the Veteran sought to reopen his claim for entitlement to service connection for hearing loss, new and material evidence is required in order for the Board to consider the substantive merits of the claim for service connection. See 38 C.F.R. § 3.156(a). The evidence associated with the record since the September 2013 rating decision consists of VA treatment records showing the Veteran’s hearing loss disability and a November 2016 VA examination for hearing loss. While the VA treatment records and VA examination are new, in that they were not of record at the time of the prior, final decision, they are duplicative of the evidence of record already of record, as they note the Veteran’s current hearing loss, but do not provide a medical nexus between his hearing loss and his active duty service. The appellant testified at the August 2020 hearing that, while he was alive, the Veteran told her that during active duty he was filling missiles with liquid nitrogen which was very loud and that he had no hearing protection. The Veteran submitted a statement to the effect that he had noise exposure from filling missiles with liquid nitrogen in April 2012. He was awarded service connection for tinnitus based on this noise exposure in September 2013. This testimony is not new to the record. The appellant also testified that she met the Veteran in approximately 1975, and that his hearing began to diminish sometime in the late 1970s or early 1980s, more than ten years after he separated from active duty. The Board finds this testimony does not raise a reasonable possibility of substantiating the claim. It does not establish that the Veteran’s hearing loss was present during service, within one year of separation from service, or productive of symptoms continuously since service. 38 C.F.R. §§ 3.303(b), 3.307(a). Finally, the appellant does not have the education, training, or experience in medicine to offer a nexus opinion. 38 C.F.R. § 3.159(a). If the Veteran’s hearing loss was a remote result of his in-service noise exposure, it would be via an internal biological process which the appellant would not be able to observe. Her assertions that the delayed onset hearing loss may be related to service are no more than bald assertions without a foundation in either competent lay or medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Had the instant appeal been on the merits, VA would not be obligated to provide a medical examination on such a basis. See Colantonio v. Shinseki, 606 F.3d 1378, 1380-82 (Fed. Cir 2010). The appellant was given an opportunity after the August 2020 hearing to submit any medical evidence that could establish that the Veteran’s hearing loss was at least as likely as not related to his service, but the appellant did not submit any additional evidence. In light of the foregoing, the Board finds that the evidence received since the prior final denial is either duplicative or does not raise a reasonable possibility of substantiating the bilateral hearing loss claim. In reaching its finding, the Board has considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable to threshold matters under 38 U.S.C. § 5108. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Therefore, the Board concludes the claim for entitlement to service connection for hearing loss may not be reopened. Accordingly, the appeal is denied. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate 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.