Citation Nr: 18143160 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-27 462 DATE: October 18, 2018 ORDER New and material evidence having been received, the claim for service connection for residuals of a fractured left wrist is reopened. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for residuals of a fractured left wrist is remanded. FINDINGS OF FACT 1. In March 1972, the RO denied service connection for residuals of a fractured left wrist. The Veteran did not appeal. 2. Evidence received since the March 1972 rating decision is new and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s tinnitus did not have its onset during service and is not related to any incident of service, including noise exposure. CONCLUSIONS OF LAW 1. The March 1972 rating decision that denied service connection for residuals of a fractured left wrist is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the March 1972 rating decision is new and material for purpose of reopening the claim for service connection for residuals of a fractured left wrist. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 17, 1971 to June 24, 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received sufficient to reopen a claim for service connection for a fractured left wrist For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim based on all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In this case, the Veteran is seeking entitlement to service connection for residuals of a fractured left wrist. This claim was initially denied by a rating decision in March 1972 based on a determination that the Veteran’s fractured left wrist pre-existed service. The evidence of record did not show nonunion of an old navicular fracture in the left wrist to have been incurred in or aggravated during active duty service. The Veteran was notified of this decision and of his appellate right by letter dated March 30, 1972. He did not appeal. Therefore, the March 1972 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record at the time of the March 1972 rating decision consisted of the Veteran’s claim submitted in February 1972 and his service treatment records (STRs). Evidence received since the March 1972 rating decision includes lay statements from the Veteran. In May 2015, he stated that he suffered an injury to his left wrist during boot camp. He stated that while playing football a guy hit him and he heard his wrist pop, and then it “swelled up.” For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed unless “patently incredible.” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds the Veteran’s statement describing an in-service injury to his left wrist is new. It is also material, as it raises the possibility of in-service incurrence and/or aggravation of a left wrist disorder. Under these circumstances, the Board conclude that new and material evidence to reopen the claim for service connection for residuals of a left wrist fracture has been received. As such, the claim is reopened. Entitlement to service connection for tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Tinnitus is encompassed by the list of chronic diseases under 38 C.F.R. § 3.309(a). See M21-1MR, Part III.iv.4.B.12.a. (noting “other organic diseases of the nervous system” includes tinnitus). Therefore, the Board has considered and applied the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology in analyzing the Veteran’s tinnitus claim. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases, including tinnitus as an organic disease of the nervous system, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Here, however, the Veteran did not serve on active duty continuously for 90 days or more. Therefore, the presumption does not apply. The Veteran has been diagnosed with tinnitus; so the current disability element of the claim has been established. The record establishes that the Veteran began medical board proceedings for separation from service during his first week of basic training. See STR, dated March 13, 1972. STRs lack complaints of or treatment for ringing in the ears or any related ear trouble. Audiometric examinations on entrance and separation were normal. Id; DD 214, dated February 15, 1972. A telephone control slip dated March 3, 1988, notes that the Veteran reported a loud noise in his ear, and then dead air. On VA examination, the Veteran reported that his tinnitus had its onset approximately two to three years earlier. See C&P Exam, August 3, 2015. Later statements noted having “the condition for a while, since I got out of service.” See Form 9, dated June 13, 2016. The Veteran reported in-service exposure to rifle fire and post-service employment as a mechanic without hearing protection. See C&P Exam. The examiner found a high probability of noise exposure in basic training. The examiner noted that the Veteran reported that his tinnitus began well after his military service and that there was no evidence of a threshold shift during his military service or complaint of tinnitus in his service medical records. As such, the examiner stated that she could not link the Veteran's tinnitus to his active military service or noise exposure therein. She concluded that it was less likely than not that the Veteran’s tinnitus was caused by or a result of in-service noise exposure. The preponderance of the evidence weighs against a relationship between the Veteran's tinnitus and his active service, including any in-service noise exposure. The Veteran has not asserted that he experienced symptoms of tinnitus during service. There is no lay or medical evidence showing the presence of tinnitus during service. Accordingly, the Board finds that the Veteran's tinnitus first manifested after service separation. The VA examiner’s opinion finding against a relationship to service carries a lot of evidentiary weight in the Board's determination, as it represents the informed conclusion of an objective medical professional, and because the examiner provided a specific explanation in support of her conclusion. The Board has considered the Veteran's opinion that his tinnitus is related to in-service noise exposure, but finds that it lacks probative value and is outweighed by the VA medical opinion finding against a link to service. In this regard, the Board may not categorically reject lay testimony on medical issues or categorically find that medical evidence is required to support the claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). Rather, the Board must determine on a case-by-case basis whether lay testimony is competent with respect to the issue in question, or whether medical evidence is required. Id.; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson, 581 F.3d at 1316; Jandreau, 492 F. 3d at 1376-77; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Id; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, while the Veteran is competent to describe the symptoms of his tinnitus which he asserts began after his separation from service, whether in-service noise exposure may have caused the development of tinnitus later cannot be made based on lay observation alone given the amount of time that elapsed, and because there is no apparent cause-and-effect relationship that can be readily observed through the senses and without the aid of medical knowledge. Accordingly, because he is a lay person in the field of medicine, the Veteran's unsupported opinion is not competent evidence on this medically complex issue. See id. Therefore, it lacks probative value. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In any event, the Veteran's lay opinion is outweighed by the VA medical opinion, which was rendered by a medical professional who provided a specific explanation for the conclusion reached. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Because the Board finds that the Veteran's tinnitus did not manifest during service or until sometime following service separation, service connection is not warranted based on chronicity in service or a continuity of symptoms after service. See 38 C.F.R. § 3.303(b). In sum, the probative evidence of record establishes that the Veteran’s tinnitus had its onset after service and is not related to any in-service noise exposure. The preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for tinnitus is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Entitlement to service connection for residuals of a fractured left wrist On remand, the Veteran should be afforded a VA examination of his left wrist in order to obtain a medical opinion, as described below. The matter is REMANDED for the following action: 1. Ensure that the Veteran’s complete service treatment have been obtained, to include copies of any x-ray reports and all Medical Board records. 2. Ask the Veteran to identify all medical care providers that have treated him for his left wrist since June 1971. Make arrangements to obtain all identified records. 3. Thereafter, schedule the Veteran for a VA orthopedic examination of his left wrist. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should identify all current left wrist disorders found to be present. Then, the examiner should provide opinions on the following: (a) Is there clear and unmistakable evidence that any left wrist disorder preexisted the Veteran’s entry into active military service on May 17, 1971? (b) If it is found that a left wrist disorder clearly and unmistakably preexisted service, is there also clear and unmistakable evidence that such was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? (c) Is it at least as likely as not (50 percent or greater probability) that any current left wrist disorder had its clinical onset during service or is related to any incident of service? A complete rationale should be provided for any opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel