Citation Nr: 18146018 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-29 044 DATE: October 30, 2018 ORDER New and material evidence having not been received, the petition to reopen the prior denial of service connection for bilateral hearing loss is denied. New and material evidence having not been received, the petition to reopen the prior denial of service connection for residuals of dengue fever is denied. FINDINGS OF FACT 1. Rating decisions in June 1990 and July 2005 denied service connection for bilateral hearing loss; the Veteran did not submit a timely notice of disagreement, and additional relevant evidence was not received within the appeal period. 2. New evidence received since the July 2005 denial of service connection for hearing loss is not material because it is either cumulative or redundant of prior evidence, does not relate to an unestablished fact necessary to substantiate the claim, or does not raise a reasonable possibility of substantiating the claim. 3. A rating decision in June 1990 denied service connection for residuals of dengue fever; the Veteran did not submit a timely notice of disagreement, and additional relevant evidence was not received within the appeal period. 4. New evidence received since the June 1990 denial of service connection for dengue fever is not material because it is either cumulative or redundant of prior evidence, does not relate to an unestablished fact necessary to substantiate the claim, or does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2005 denial of service connection for bilateral hearing loss was final, and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5104, 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103 (2018). 2. The June 1990 denial of service connection for residuals of dengue fever was final, and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5104, 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from October 1966 to October 1968, including in the Republic of Vietnam. In a May 2013 rating decision and April 2016 statement of the case, the agency of original jurisdiction (AOJ) found that new and material evidence had not been received and declined to reopen the prior denials of service connection for hearing loss and dengue fever residuals, and briefly addressed the merits and found that service connection was not warranted. The Board must address the petition to reopen as a threshold jurisdictional matter. Reopening Service Connection Denials In general, decisions of the AOJ that are not appealed within one year of notice of the decision are final. See 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim may be reopened if new and material evidence is received. New evidence means existing 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. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead 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. Id. at 118. In other words, a “claim should be reopened if, in light of the other evidence of record and further VA assistance, [the] newly submitted evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim.” Mitchell v. McDonald, 27 Vet. App. 431, 440 (2015). For the purposes of reopening, all new evidence received is presumed credible unless it is inherently or patently not credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). However, once a claim is reopened and the Board addresses the merits of a claim, the Board may determine that the new evidence is not credible or is outweighed by other evidence. Shade, 24 Vet. App. at 117. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Additionally, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, will be presumed related to service if they were noted as chronic in service; or if they manifested to a compensable degree within a presumptive period (usually one year) following separation from service; or if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). In adjudicating the merits of such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Petition to reopen service connection for bilateral hearing loss The AOJ initially denied the Veteran’s February 1990 claim for hearing loss or defective hearing in a June 1990 rating decision. The Veteran was notified of this decision and his appellate rights at that time, and he did not initiate an appeal, nor was additional evidence received within the appeal period. Therefore, the 1990 AOJ decision became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Although the Veteran’s electronic claims file identifies service treatment records as having been received in 2016, this appears to be the date they were uploaded to the electronic file. The records are not date-stamped as to the date of receipt, and the 1990 rating decision reflects that those records were in the file and reviewed at that time. Thus, no relevant service records were received after the 1990 decision to render it not final. See 38 C.F.R. § 3.156(c). In his February 1990 claim (VA Form 21-526), the Veteran asserted that he had hearing loss from a perforated or burst left ear drum in September or October 1967. In denying service connection for perforated ear drum and defective hearing in 1990, the AOJ found that the Veteran had preexisting hearing loss when he entered service, as shown by audiometric testing with pure tones showing 60 decibels at the 4000 Hertz level in the left ear and a notation of defective hearing at his 1966 pre-induction examination. The AOJ further found that the Veteran’s claimed perforation of the ear drum during service was not established. The AOJ noted that the ears were noted as normal and audiometric testing was within normal limits at his 1988 separation examination. The AOJ also noted that private audiometric testing in January 1990 showed bilateral hearing loss. The AOJ concluded that the Veteran’s preexisting hearing loss was not aggravated by service and that perforation of the ear drum was not incurred or aggravated by service. This rating decision reflects that a current bilateral disability was established, but the elements of in-service injury or disease and a nexus to service, based on aggravation for the left ear or incurrence for the right ear, were not established. In November 2004, the Veteran submitted another claim (VA Form 21-526) for bilateral hearing loss, asserting that it began in October 1967, consistent with his prior claim. He submitted a statement indicating that he was claiming hearing loss as due to noise trauma while in service, and denying any VA or private treatment. The AOJ denied this claim in a July 2005 rating decision, finding that new and material evidence had not been received to reopen the previously denied claim. The Veteran was notified of this decision and his appellate rights at that time, and he did not initiate an appeal, nor was additional evidence received within the appeal period. Therefore, the 2005 AOJ decision became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. In the 2005 denial, the AOJ found that there was still no evidence of in-service injury, clinical finding, treatment, or disease process to establish an onset of hearing loss during service or to a compensable degree within one year of discharge; and that there were no records showing that hearing loss was chronic since service discharge to the present to establish continuity to service. This rating decision continues to reflect that a current disability was established, but the elements of in-service injury or disease and a nexus to service, to include for chronic disease with continuity of symptomatology, were not established. In March 2012, the Veteran submitted an informal claim for service connection for bilateral hearing loss. He identified and submitted a record of private treatment in June 2013, which included audiometric testing and notations as to the diagnosis and history. The audiogram showed pure tone thresholds ranging from of 50 to 95 decibels at the 250 to 8000 Hertz levels bilaterally, noted bilateral moderate to profound hearing loss, and recorded a history of both gradual and sudden hearing loss. The Veteran reported noise exposure from coal mines and gunfire. He denied ear surgery but reported left tympanic membrane (TM, or ear drum) scarring. In his June 2013 notice of disagreement, the Veteran asserted that this treatment record from June 2013 was new evidence establishing moderate to profound hearing loss and significant scarring the left ear that is “deemed to have come from the perforated ear drum injury suffered during the time of service in Viet Nam.” The June 2013 treatment record is new evidence; however, it does not establish what the Veteran asserts concerning a link to service and is not otherwise material. The record does not include any notation concerning the timing or cause of the scarring of the left ear drum, to include whether that condition or the Veteran’s hearing loss was incurred or aggravated during service. The Veteran had already reported having a perforated left ear drum for his prior claim in 1990. The provider’s notation of the Veteran’s report concerning his history, or even a finding of scarring of that ear drum upon examination in 2013, does not suggest that the condition existed during service or is related to service. Additionally, the 2013 record notes noise exposure from coal mining and gunfire, without referencing service or specifying whether the gunfire was in service. Thus, this evidence does not relate to the unestablished facts of an in-service injury or disease or a nexus to service. Some of this evidence actually points away from an in-service injury or a link to service, so it does not raise a reasonable possibility of substantiating the claim and does not require reopening. See Mitchell, 27 Vet. App. at 440. The claims file also includes three new lay witness statements dated in June 2013 with information relevant to the Veteran’s hearing loss; however, those statements are not material. The prior evidence already established a current hearing loss disability, and this new evidence otherwise attempts to establish a nexus or link to service, which is one of the missing elements from the prior denials. Nevertheless, this new evidence does not raise a reasonable possibility of establishing a link to service through continuity of symptomatology for chronic disease or otherwise. Id. Concerning the chronic disease presumption, one of the witnesses (J.B.) stated that he had known the Veteran since high school, or prior to service and afterwards. However, he did not indicate that he noticed the Veteran having hearing loss during or within one year after service or continuously since that time. Similarly, the Veteran’s neighbor (S.S.) indicated that he has known the Veteran for more than 40 years, or since at least 1973. This would be several years after the Veteran’s service discharge in 1968, and this witness also did not specify when he first noticed the hearing difficulties. Instead, both statements indicate general observance of hearing difficulties in the present tense. Additionally, although the Veteran asserts that his hearing loss is due to service, and he reported for his prior claims in 1990 and 2004 that his hearing loss or perforated ear drum “began” in 1967, he has not specified when he first noticed hearing loss symptoms. Thus, even presuming credibility of these competent lay reports of the Veteran’s observable symptoms, the evidence does not suggest continuity of symptomatology since service and does not raise a reasonable possibility of substantiating the claim. Otherwise, J.B. and S.S. asserted, respectively, that it was their personal belief that the Veteran’s hearing loss was the result of his service in Vietnam and that he had been having a lesser quality of life since his service in Vietnam. Although certain specific diseases may be presumptively service connected based on service in Vietnam, hearing loss is not one of those conditions. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Neither the Veteran nor these two lay witnesses are competent to provide an opinion concerning the cause of his current hearing loss. This is a complex question requiring medical knowledge of the interaction between multiple body systems, including the neurological system for sensorineural hearing loss, as well as consideration of the Veteran’s history. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Conclusory statements by the Veteran or other lay witnesses concerning a link to service are not sufficient to indicate that the current disability may be associated with service to trigger VA’s duty to provide a VA examination or medical opinion for his claim. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Thus, this evidence also does not require reopening. Additionally, the new evidence includes information that is unfavorable to the Veteran’s claim. Prior evidence from 1990 showed that he was a truck driver and audiometric testing that showed significant hearing loss was conducted for that employment; thus, it is reasonable to infer that the Veteran had noise exposure from that employment. New evidence received in June 2013 establishes additional post-service noise exposure, which is relevant to the potential cause of his hearing loss. In addition to the notation in the private record of noise exposure from coal mining and unspecified gunfire, the lay statement from C.J. also noted that the Veteran worked in surface mining for many years. The lay statement from S.S. also referenced additional activities with potential loud noise exposure over the course of many years of mowing lawns and vehicle repairs in a garage. Furthermore, although the Veteran claimed noise exposure during service in his 2004 claim, he has not identified any specific exposure that he believes resulted in hearing loss. Service records reviewed with the 1990 initial denial included his DD Form 214 that showed a specialty of clerk typist along with a sharpshooter’s badge (rifle). Although the Veteran served in Vietnam, there were no citations, awards, etc. indicating combat service, nor has the Veteran has asserted that he engaged in combat with the enemy. He may have had noise exposure during training for the rifle badge or otherwise; however, that evidence was previously available. Additionally, although the June 2013 audiometric testing shows higher decibels at multiple levels, or more severe hearing loss, than in the 1990 testing, that does not raise a reasonable possibility of substantiating the Veteran’s claim. Instead, it suggests that hearing loss worsened many years after discharge from service. In sum, the new evidence does not relate to an unestablished fact that was a reason for the prior denial or does not raise a reasonable possibility of substantiating the claim. Mitchell, 27 Vet. App. at 440; Shade, 24 Vet. App. at 117-18. The low threshold for reopening the claim is not met, and the appeal must be denied. 2. Petition to reopen service connection for residuals of dengue fever The AOJ initially denied the Veteran’s February 1990 claim for residuals of dengue fever in a June 1990 rating decision. The Veteran was notified of this decision and his appellate rights at that time, and he did not initiate an appeal, nor was additional evidence received within the appeal period. As explained above, service records uploaded to the file in 2016 were reviewed for the 1990 decision; they were not received after that decision. Therefore, the 1990 decision became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 20.1103. In his February 1990 original claim (21-526), the Veteran asserted that he had a fever of unknown origin in November or December 1967. In denying service connection for residuals of dengue fever, the AOJ found that the Veteran was hospitalized for 10 days in November 1967 for treatment for dengue fever, manifested by chills, headaches, backache, and nausea. Service records include a summary of clinical care that is mostly illegible as scanned in to the electronic file in 2016 but appears to note this hospitalization, and the AOJ had the paper file for review at that time. The AOJ further noted that no residuals were recorded at the 1988 separation examination. The AOJ concluded that dengue fever resolved with treatment and was considered to have been of an acute and transitory nature. This rating decision reflects that an in-service injury or disease was established, but the elements of a current disability and a link to service were not established. In March 2012, the Veteran submitted an informal claim for service connection for dengue fever, without identifying any treatment or additional information. In his June 2013 notice of disagreement, the Veteran asserted that new evidence for his residuals of dengue fever is that he has been cold and had difficulty keeping warm ever since returning from Vietnam, as shown by three new lay statements. Specifically, one of the witnesses (J.B.) stated that he had known the Veteran since high school, or prior to service and afterwards, and that the Veteran returned a “different man” and “is in a constant state of chilling” and seems to never be able to get warm enough. He described past events with the Veteran where he would wear winter clothing in the summer, and he stated that he believes this constant chilling is a result of service in Vietnam. Similarly, the Veteran’s neighbor (S.S.) indicated that he has known the Veteran for more than 40 years, or since at least 1973. This would be several years after the Veteran’s service discharge in 1968. S.S. stated that in all those years he had never seen the Veteran without a sweatshirt and he frequently complained of being cold. He stated that he believes the Veteran has had a lesser quality of life since returning from Vietnam. A third witness (C.J.) stated that he had been the Veteran’s coworker and supervisor for at least 20 years and that in this time he heard the Veteran complained of being cold. He stated that the Veteran would dress in warm clothing even in summer months, and he had never seen another person freeze or chill the way the Veteran did. These statements from the Veteran and lay witnesses are new evidence. They are competent and presumed credible with regard to having observable symptoms of feeling cold or unable to get warm since service or shortly after service. However, neither the Veteran nor the other lay witnesses are competent to provide an opinion concerning the underlying disability for his symptoms, or to provide an opinion as to the cause of any such condition. These are complex questions requiring medical knowledge of the interaction between multiple body systems and consideration of the Veteran’s history. See Jandreau, 492 F.3d at 1376-77. In other words, they are not competent to suggest a current disability, to include a chronic disease to qualify for presumptive service connection, or otherwise link the condition to service. Prior evidence indicated symptoms associated with his in-service treatment for dengue fever, but not chilling or inability get warm, and no residuals of reported symptoms or clinical abnormality at the Veteran’s examination for separation from service. There is no new medical evidence to suggest a current diagnosis, chronic disease or otherwise, or a potential link to service. A medical opinion is not required in every case, and conclusory statements by the Veteran or other lay witnesses are not sufficient to indicate that there is a current disability that may be associated with service to trigger VA’s duty to provide a VA examination or medical opinion. Waters, 601 F.3d at 1278-79. (CONTINUED ON NEXT PAGE)  In sum, the new evidence is not material and does not raise a reasonable possibility of substantiating the claim, and the low threshold for reopening the claim is not met. See Mitchell, 27 Vet. App. at 440; Shade, 24 Vet. App. at 117-18. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Wheatley