Citation Nr: 18145435 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-36 486 DATE: October 29, 2018 ORDER New and material evidence not having been received, the claim for entitlement to service connection for a low back disorder is not reopened. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. In a March 2011 rating decision, the RO denied entitlement to service connection for a low back disorder. Notice of the decision was provided that same month. The Veteran did not appeal the March 2011 denial of that claim, and new and material evidence was not received within the one-year appeal period of the March 2011 rating decision. 2. Evidence received since the March 2011 rating decision is new, but does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disorder. 3. The probative evidence of record does not show that the Veteran’s tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The March 2011 rating decision is final with respect to the Veteran’s claim to establish service connection for a low back disorder. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the March 2011 rating decision is not new and material, and therefore the claim for entitlement to service connection for a low back disorder is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to March 1982. The Veteran’s July 2016 substantive appeal reflects a request to appear at a videoconference hearing before the Board. However, in a September 2016 substantive appeal, the Veteran denoted that he did not wish to appear at a hearing before the Board. The Board accepts the Veteran’s September 2016 statement as a request to withdraw his previous hearing request. Accordingly, the Board will proceed with adjudication of his claims. Since the RO last considered the Veteran’s claims in July 2016, additional evidence has been added to the Veteran’s claims file. The additional evidence consists of private treatment records. Although the Veteran has not provided a waiver of RO consideration of the private treatment records, a waiver is not needed in this case with respect to that evidence. An automatic waiver of Agency of Original Jurisdiction (AOJ) consideration applies in this case with respect to the private treatment records submitted by the Veteran because the Veteran’s substantive appeal was received after February 2, 2013, and the Veteran has not requested the Board to remand the case for AOJ consideration of the evidence. See 38 U.S.C. § 7105(e). With regard to the Veteran’s claim to reopen the issue of entitlement to service connection for a low back disorder and entitlement to service connection for tinnitus, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Letters dated in June 2013 and October 2013 satisfied the duty to notify provisions for the claims. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App 1 (2006). With regard to VA’s duty to assist, the Veteran’s service treatment records, VA medical treatment records, and identified private medical treatment records have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence in the claims file does not suggest that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran did not undergo a VA examination with regard to his claim to reopen the issue of entitlement to service connection for a low back disorder. VA is not required to provide a VA examination or obtain a medical opinion in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). The Veteran was afforded VA examinations addressing the etiology of his tinnitus in November 2015 and July 2016. Review of the July 2016 VA opinion shows it to be adequate in this case, as the opinion was based upon a thorough review of the pertinent evidence of record and provides sufficient supporting explanation and rationale for the opinion provided. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). There is no indication in the record that any additional evidence, relevant to the issues adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disorder The Veteran contends that he has submitted new and material evidence sufficient to reopen the claims of entitlement to service connection for a low back disorder. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a low back disorder was denied by the RO in a March 2011 rating decision. Notice of that decision was provided to the Veteran that same month. The Veteran did not appeal the March 2011 rating decision’s denial of entitlement to service connection for a low back disorder, and no evidence was received within the one-year appeal period that would constitute new and material evidence. Thus, the March 2011 rating decision is final with respect to entitlement to service connection for a low back disorder. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The previously considered evidence included service treatment records dated in 1981 and 1982 showing that the Veteran complained of back pain. Also of record was a December 2010 medical opinion indicating that a causal relationship could not be established between a current back disorder and the low back strain in 1981 and 1982 in light of the 28 year time gap. The March 2011 rating decision denied service connection for a low back disorder on the basis that there was no competent and credible evidence demonstrating a relationship between the Veteran’s current low back disorder and his active duty service. Thus, in order for the Veteran’s claim to be reopened, evidence must be added to the record since the March 2011 rating decision addressing the basis for the March 2011 decision. Although the RO determined that new and material evidence was not presented to reopen the claim of entitlement to service connection for a low back disorder, the Board does not have jurisdiction to consider a claim on the merits which was previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. After a thorough review of the evidence of record, the Board concludes that new and material evidence has not been received to reopen the claims of entitlement to service connection for a low back disorder. The only evidence associated with the claims file since the March 2011 rating decision consists of statements from the Veteran, VA treatment records, and private treatment records. The Veteran’s lay statements explain that he was treated for low back pain during service. He noted that he was injured by a panel of equipment from a helicopter and that he handled a lot of heavy equipment during service. The VA treatment records document diagnoses of and treatment for degenerative disc disease of the lumbar spine as well as complaints of low back pain for many years. The private treatment records also reflect that the Veteran reported low back pain. While the VA treatment records and the private treatment records associated with the claims file since the March 2011 rating decision are new evidence, they are not material to the Veteran’s claim as they do not mention or address the etiology of the Veteran’s low back disorder; nor do they suggest that his degenerative disc disease of the lumbar spine was diagnosed within one year of service discharge. With regard to the Veteran’s lay statement discussing his in-service injury, the Board finds his statement to be redundant of those allegations made before the RO at the time of the March 2011 rating decision; thus, they are not new evidence. As the bases of the RO’s March 2011 denial of the Veteran’s claim for entitlement to service connection for a low back disorder was a conclusion that the evidence did not show that the Veteran’s low back disorder was etiologically related to his active duty service, the new evidence received since the March 2011 rating decision is not material; accordingly, the issue of entitlement to service connection for a low back disorder is not reopened. As new and material evidence has not been submitted to reopen the finally disallowed claim of entitlement to service connection for a low back disorder, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for tinnitus based on exposure to acoustic trauma during service. The Veteran’s service treatment records are silent as to any complaints of or treatment for tinnitus during service. Initially, the Board observes that there is evidence of a current diagnosis of tinnitus, as shown in a July 2016 VA examination. Additionally, the Board acknowledges that the Veteran experienced acoustic trauma during military service from exposure to loud noise on the flight deck of the U.S.S. FORRESTAL. However, there is no medical evidence or credible lay evidence relating the Veteran’s tinnitus to his service. The only medical evidence of record addressing the etiology of the Veteran’s tinnitus is the July 2016 VA opinion, which concluded that it was less likely than not that the Veteran’s tinnitus was related to service. The rationale provided by the examiner noted the lack of evidence of tinnitus in the service treatment records. Additionally, the examiner explained that the Veteran reported during his examination that the onset of his tinnitus was in 2008. Based on the Veteran’s lay statements, the evidence in the claims file, as well as a report by the Institute of Medicine which concluded that the possibility that tinnitus is triggered by other factors increases as the interval between a noise exposure and the onset of tinnitus lengthens, the examiner concluded that it was less likely than not that the Veteran’s tinnitus was related to his in-service noise exposure. In the absence of any medical evidence or any credible lay evidence relating the Veteran’s tinnitus to service, the preponderance of the evidence is against the claim, and service connection is not warranted. There is no doubt to be resolved, and service connection is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel