Citation Nr: 1751878 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-09 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right shoulder dislocation and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active duty service from August 1986 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. The issue of entitlement to service connection for a right shoulder dislocation is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final rating decision issued in September 2002, the RO denied service connection for right shoulder dislocation and bilateral hearing loss. 2. Evidence added to the record since the final September 2002 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right shoulder dislocation. 3. Evidence added to the record since the final September 2002 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. 4. Resolving all doubt in his favor, the Veteran's tinnitus had its onset during service. CONCLUSIONS OF LAW 1. The September 2002 rating decision that denied service connection for right shoulder dislocation and bilateral hearing loss is final. 38 U.S.C.A § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for right shoulder dislocation. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss has not been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Application to Reopen Previously Denied Claims Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). From the date of notification of an agency of original jurisdiction (AOJ) decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a Statement of the Case, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). 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.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that 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. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the RO denied the Veteran's original claim for service connection for right shoulder dislocation and bilateral hearing loss in a September 2002 rating decision, which became final. Of record at the time of the September 2002 rating decision were the Veteran's service treatment records, post-service treatment records, and 2002 VA examination report. The service treatment records reflected the Veteran's report of a painful or trick shoulder at his February 1989 Report of Medical History at separation, and his April 2002 statement to a treating VA clinician that he had long-standing right shoulder pain since 1989, which his last year in service. Also of record was a September 2002 VA clinician's finding that the Veteran had right ear high frequency hearing loss at 4000 Hertz (Hz) on his enlistment audiogram, "which appeared unchanged" at discharge from service in 1989. With respect to a right shoulder disorder, the RO found no evidence that the claimed condition exists, or that it began in service. With respect to right ear hearing loss, the RO found that his hearing has not declined since he entered service in 1986. With respect to left ear hearing loss, the RO found that his hearing was normal throughout service and remained normal at the time of the 2002 VA examination. In September 2002, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement as to such denial, and no further communication regarding his claim of entitlement to service connection for a right shoulder dislocation and bilateral hearing loss was received until March 2010, when VA received his application to reopen such claims. Furthermore, no new and material evidence was received within one year of notice of the decision, and no relevant official service department records were subsequently associated with the record. Therefore, the September 2002 rating decision is final. 38 U.S.C.A § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002) [(2017)]. Since the issuance of the September 2002 rating decision, new and material evidence sufficient to reopen a claim of entitlement to service connection for a right shoulder dislocation has been received. Specifically, such includes a May 2008 VA clinician's diagnosis of "a brachial plexus injury in the right shoulder." Moreover, a May 2011 VA clinician diagnosed the Veteran with "right shoulder pain: appears to be a combination of bicipital tendonitis, rotator cuff tendonitis and, possibly, subacromial bursitis. Likely chronic conditions." The May 2011 VA clinician added that the Veteran's right shoulder disorder has been present "likely since his service in the military." Additionally, the Veteran reported that his right shoulder injury occurred in training during a "hasty repel, where you tie a rope around a tree and you just climb down without losing your weapon;" he further reported that he has had pain, discomfort, popping, and dislocation in his right shoulder ever since. See March 2010 statement, April 2017 Hearing testimony. Furthermore, in June 2011 the Veteran's friend, R.S., and his spouse both wrote that the Veteran has complained of pain and mobility problems in his right shoulder since they met him during his service in 1987. The Board finds that the evidence added to the record since the final September 2002 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right shoulder dislocation. In this regard, the Veteran did not have a diagnosis of a right shoulder disorder at the time of the September 2002 denial, and his report of ongoing symptoms since service, combined with the May 2011 VA clinician's statement, is sufficient to trigger the Secretary's duty to assist by providing a medical opinion. Shade, supra. Consequently, new and material evidence has been received in order to reopen the claim of entitlement to service connection for a right shoulder disorder. With respect to right ear hearing loss, the evidence received since the September 2002 rating decision includes the Veteran's statements that he was exposed to hazardous noise with no or inadequate hearing protection in service, and noticed a difference in his hearing in service. See March 2010 statements, April 2013 substantive appeal, April 2017 Hearing testimony. Furthermore, the Veteran's friend, R.S., and his spouse both wrote in June 2011 that he has complained about his hearing since they met him in 1987. Additionally, new audiograms are of record, including a February 2010 private audiogram from Dr. Maxon, and an October 2010 VA examination report. However, the Board finds that the evidence received since the September 2002 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for right ear hearing loss. In this regard, the September 2002 VA clinician had found high frequency hearing loss at 4000 Hz in the right ear on the Veteran's enlistment audiogram, "which appeared unchanged" at discharge from service in 1989. Likewise, the October 2010 VA examiner found that the Veteran's right ear "hearing loss has not shown any progression since his discharge from the Marine Corps in 1989 or from his entrance in 1986. This determination is based upon there is no change in his hearing loss since that time and also the unilateral nature of his hearing loss [because] noise exposure generally affects both ears." Where, as here, a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but he may bring a claim for service-connected aggravation of that disorder. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Here, the evidence added to the record following the September 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim. Although the Veteran did state in March 2010 that he noticed a difference in his hearing in service, and his statements are presumed credible for the purpose of reopening a claim, he is not competent to observe the extent of changes in his hearing, as such require measurement by instrumentation beyond that which is capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the September 2002 VA clinician found that the Veteran's right ear hearing loss in service was "unchanged" from his enlistment audiogram to his separation audiogram, as the October 2010 VA examiner found that his right ear "hearing loss has not shown any progression since his discharge from the Marine Corps in 1989 or from his entrance in 1986," and as no evidence received after the September 2002 final rating decision relates to an unestablished fact showing aggravation of his right ear hearing loss in service, the new evidence does not provide a reasonable basis for establishing the claim. With respect to left ear hearing loss, the evidence received since the September 2002 rating decision includes the statements listed above, plus the Veteran's February 2010 private audiogram from Dr. Maxon and his October 2010 VA examination audiogram, which continue to fail to show hearing loss for VA purposes in the left ear. 38 C.F.R. § 3.385. In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board finds that the evidence received since the September 2002 final rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claims for service connection for bilateral hearing loss. Consequently, new and material evidence has not been received to reopen the claims for service connection for bilateral hearing loss, and the Veteran's appeal must be denied. As new and material evidence to reopen the finally disallowed claims of entitlement to service connection for bilateral hearing loss has not been received, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease 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). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such is capable of lay observation and has been confirmed by the medical evidence of record. See 38 C.F.R. § 3.159(a)(2); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a layperson is competent to observe tinnitus). The Board acknowledges that the Veteran's service treatment records include no complaint, diagnosis, or treatment referable to tinnitus, and an October 2010 VA examiner opined that the Veteran's tinnitus is less likely as not caused by or a result of his active duty noise exposure; however, the examiner did not offer a rationale for such opinion. Furthermore, the remainder of the evidence of record reflects the Veteran's consistent reports that his tinnitus began during service. In light of the consistency of such statements, which were corroborated by the Veteran's friend and spouse, and first documented in 2002, the Board finds them to be competent and credible. In this regard, the Veteran first reported experiencing tinnitus in September 2002, when he told his treating VA clinician that he thought it had begun in approximately 1987 or 1988, i.e., during service. The Veteran also reported experiencing tinnitus to his private physician, Dr. Maxon, in February 2010. Additionally, in March 2010, he reported that his tinnitus began in 1986, that he was exposed to hazardous noise with no or inadequate hearing protection in service, and that "I noticed the...tinnitus while serving." In his April 2013 substantive appeal, he asserted that his tinnitus originated in service from training with M16s without hearing protection, and from serving in the Honor Guard for military funerals that involved exposure to 21-gun salutes without hearing protection. The Veteran further testified that he did not have hearing protection when firing his weapons, especially during Honor Guard for funerals, and he was also exposed to high-frequency whistle in service from "miles gear." See April 2017 hearing transcript. Additionally, the Veteran's friend R.S., and his spouse both wrote in June 2011 that the Veteran complains of constant ringing in his ears. Therefore, based on the foregoing, the Board resolves all doubt in the Veteran's favor and finds his currently diagnosed tinnitus had its onset in service. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER New and material evidence having been received, the claim of entitlement to service connection for a right shoulder dislocation is reopened; the appeal is granted to this extent only. New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. To date, the Veteran has not been afforded a VA examination so as to determine the nature and etiology of his right shoulder disorder. In light of the medical and lay evidence discussed above, remand for an examination is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination-at the Boise, Idaho, VA Medical Center, if possible-to determine the current nature and etiology of his right shoulder disorder. The electronic record, including a copy of this Remand, must be made available to the examiner for review. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should review the record as it pertains to the Veteran's right shoulder disorder, to include the Veteran's service treatment records, VA treatment records, and testimony offered at the April 2017 Board hearing. This evidence includes the following: * February 1989 Report of Medical History at separation, including the Veteran's report of a painful or trick shoulder. * April 2002 statement to a treating VA clinician that he has had long-standing right shoulder pain since 1989. * May 2008 VA clinician's diagnosis of "a brachial plexus injury in the right shoulder." * March 2010 VA clinician's finding that the Veteran's right shoulder injury predates his post-service spine injury. * March 2010 Veteran's report to his VA clinician that "The right shoulder condition originated during training....I noticed pain and discomfort in the right shoulder." * May 2011 VA clinician's finding of "shoulder [symptoms] likely since his service in the military." * May 2011 VA clinician's finding of "Right shoulder pain: appears to be a combination of bicipital tendonitis, rotator cuff tendonitis and, possibly, subacromial bursitis. Likely chronic conditions." * June 2011 statements from R.S. and the Veteran's spouse to the effect that the Veteran has experienced pain and difficulty with mobility in his right shoulder since they met him in 1987. * April 2017 testimony that the Veteran initially injured and dislocated his right shoulder in a training exercise called a "hasty repel, where you tie a rope around a tree and you just climb down without losing your weapon....[I] slip[ped] and fell....10, 12 feet....It bothered me all the time after that." Following review of the record, the examiner should address the following inquiries: (A) Identify all right shoulder disorders found to be present. (B) For each diagnosed right shoulder disorder, offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability or greater) that such had its onset in service, or is otherwise related to any incident of any period of active duty (August 1986 to February 1989), to include as a result of his fall in service. (C) If the Veteran has arthritis of the right shoulder, is it at least as likely as not that it manifested within one year of his service discharge in February 1989, i.e., by February 1990? If so, please describe the manifestations. All opinions expressed by the examiner should be accompanied by a complete rationale. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs