Citation Nr: 1751406 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-42 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for loss of vision. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from October 1950 to June 1955. He is a recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In an unappealed November 1955 rating decision, the RO denied service connection for loss of vision. 2. Evidence submitted since the November 1955 rating decision does not relate to an unestablished fact necessary to substantiate the claim for loss of vision. 3. The Veteran's current hearing loss did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 4. The Veteran's current tinnitus did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. was not incurred in or caused by service. CONCLUSIONS OF LAW 1. The November 1955 rating decision, that denied service connection for loss of vision, is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for loss of vision have not all been met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Regarding Loss of Vision A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. The Veteran initially filed a service connection claim for loss of vision in September 1955, which was denied in a November 1955 rating decision. The claim was denied because there was no evidence of an in-service injury or disease and the evidence showed the Veteran's vision loss during service was developmental (non-service-connectable). The Veteran did not appeal the November 1955 rating decision within one year; thus, it became final. In May 2015, the Veteran submitted another claim for loss of vision, which was denied in a July 2015 rating decision. The pertinent evidence of record since the November 1955 rating decision includes additional medical showing that the Veteran various current eye conditions; however, these records do not show that the change in vision during service was due to any of this current eye conditions. Essentially, the unestablished fact at the time of the November 1955 decision was an in-service disease or injury. At that time of the November 1955 decision it was established that he had loss of vision. At the present time it is also established that he had loss vision. The new evidence is not evidence relating to an in-service disease or injury. Thus, the new evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim. For these reasons, the claim to reopen is denied. II. Service Connection To establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010); see also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Whether the requirements for establishing service connection are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Ultimately, it is the appellant's burden "to present and support a claim for benefits under laws administered by the Secretary." See 38 U.S.C. § 5107(a). A. Hearing Loss and Tinnitus In this case, the Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. The record shows that the Veteran has a current diagnosis of hearing loss and tinnitus for VA purposes. Therefore, the remaining questions are whether there was an injury or disease during service and whether there is a nexus between such injury or disease and his current hearing loss and tinnitus. The Veteran has not asserted that his hearing loss and tinnitus began in service or continued since service; and hearing tests conducted during induction and separation do not provide any indication of acoustic trauma or hearing loss. Also, the Veteran's service treatment records are silent for treatment or complaints of hearing related issues. The evidence does not show that his current hearing loss and tinnitus began in service, and there is no evidence of hearing loss until December 2009-54 years after separation from service. Therefore, presumptive service connection is not warranted, and service connection may not be established based on chronicity in service or continuity of symptomatology since service. As noted, the first evidence of hearing loss was in December 2009-more than five decades after service. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In this case, the absence of any medical evidence of treatment for hearing loss until five decades after separation from service, when the Veteran was of advanced age, tends to show that his current hearing loss and tinnitus are unrelated to service. The Veteran was afforded a VA examination in July 2015 to help substantiate his claims. The VA examiner diagnosed bilateral sensorineural hearing loss and tinnitus, but reasoned that the combination of negative service records, the significant time gap between service and onset, and the Veteran's advanced age made it less likely than not that they were due to service. The VA examiner's opinion is highly probative of the question at hand. The examiner, an audiologist, possessed the necessary education, training, and expertise to provide the requested opinion. Furthermore, the examiner reviewed the Veteran's case file and took into consideration relevant factors in the opinion. The record does not contain any medical evidence attributing the Veteran's hearing loss and tinnitus to service, and the Veteran has not submitted any evidence showing a medical link between the same. See 38 U.S.C. § 5107(a) ("[the] claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). Finally, the Board cannot ignore the timing of the Veteran's claim. If the Veteran suffered from hearing loss and tinnitus since service or close to separation from service, there has been no explanation as to why he did not file a claim sooner, particularly when considering the existence of several rating decisions from 1955, 1962, 1966, 1998, 2002, 2008, and 2014. For these reasons, the preponderance of the evidence is against a finding of the Veteran's hearing loss and tinnitus being incurred in or caused by service. Since the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the service connection claims for bilateral hearing loss and tinnitus are denied. ORDER New and material evidence has not been received to reopen a previously denied claim of entitlement to service connection for loss of vision; thus, the claim is not reopened and the appeal is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs