Citation Nr: 18148635 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-62 122 DATE: November 7, 2018 ORDER As new and material evidence was not received, the request to reopen a claim for entitlement to service connection for a mental disorder (claimed as major depressive disorder and post traumatic stress disorder (PTSD)) is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. In a final October 2008 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a mental disorder (claimed as depression and PTSD). 2. The evidence received since the October 2008 rating decision is either cumulative or redundant of the evidence of record and is not so significant that it must be considered in order to fairly decide the merits of the claim for entitlement to service connection for a mental disorder. 3. The Veteran’s bilateral hearing loss did not originate in service or within a year of service, and is not otherwise etiologically related to service. 4. The Veteran’s tinnitus did not originate during active service or within a year of service, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The October 2008 rating decision denying the Veteran’s claims for entitlement to service connection for a mental disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 2. Evidence received since the October 2008 denial is not new and material; hence, the criteria for reopening the claim for entitlement to service connection for a mental disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. New and Material Evidence Historically, an October 2008 rating decision denied a claim for service connection for depression and PTSD on the basis that there was no evidence linking the Veteran’s diagnosed mental disorder to his active duty service. The Veteran did not appeal this decision and it is now final. 38 U.S.C. § 7104. In November 2014, the Veteran sought service connection for depression and PTSD. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). New evidence is evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that its task is to first decide whether new and material evidence has been received, as opposed to whether the evidence actually substantiates the Veteran’s claim. Pertinent evidence added to the record regarding the Veteran’s claim for a mental disorder since the final October 2008 RO decision includes the Veteran’s statements, VA medical records, and copies of the Veteran’s VA medical records and service treatment records (STRs), which were previously of record. A January 2015 statement from the Veteran indicated that he was seeking service connection for a mental health disorder due to the in-service death of a fellow service member in a car accident. In September 2015, a VA medical center (VAMC) record showed the Veteran to have reported he got depressed at times and wanted to resume treatment. Additional VAMC records indicate the Veteran received treatment for his depression and PTSD. A February 2016 VAMC record showed the Veteran to have talked about his experiences while in the military especially Vietnam and relief at not having to make difficult decisions in the line of duty. In May 2016, the Veteran submitted a statement which indicated he lost a fellow service member while at sea. As stated above, the prior October 2008 final rating decision denied the Veteran’s claims for service connection for a mental health disorder on the basis that there was no evidence of record linking the Veteran’s disorder to his active duty service. Based on the foregoing, the Board finds that none of the evidence obtained and made a part of the record since the final October 2008 decision established that the Veteran’s diagnosed mental health disorders were related to his active. Though the Board acknowledges that the Veteran has a mental disorder diagnosis and has sought treatment for those conditions, the newly admitted medical evidence does not show that the Veteran’s mental disorders were incurred in or caused by his active duty experiences. Additionally, though he discussed his active duty in his treatment, there is no record which showed that the Veteran’s active duty service, or any experience therein, was linked to his mental health disorders or treatment by any of his mental health care providers. Thus, while the VA records and the Veteran’s statements are new, they are not material as there is no information contained in them that indicates that the Veteran’s mental health disorders were incurred in or as a result of the Veteran’s active duty service. The Board finds, then, that the new evidence associated with the claims file since the October 2008 rating decision does not relate to any unproven element of the previously denied claims for service connection for a mental health disorder. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for a mental health disorder (claimed as depression and PTSD) is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Hearing loss is a chronic disease that is found to occur in service if it manifested to a compensable degree in active service or within one year of separation. 38 C.F.R. §§ 3.307, 3.309. When a chronic disease is shown in service, “subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.” 38 C.F.R. § 3.303(b). For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence on an issue material to a determination, the VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In November 2014, the Veteran sought service connection for bilateral hearing loss and tinnitus. The Veteran’s military occupational specialty (MOS) was as in communications (wireman) for an artillery unit. In January 2015, the Veteran submitted a statement that indicated his hearing loss was due to artillery fire during service. He also reported that he had ringing in his ears. A review of the Veteran’s STRs show that the Veteran did not have complaints of or treatment for hearing loss or tinnitus while in-service. A May 1977 separation examination showed the Veteran’s ears to be normal. A May 1977 audiological examination showed the Veteran had normal hearing in both ears. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 10 LEFT 10 0 0 0 5 However, the Board notes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a medically sound basis for attributing the Veteran’s hearing loss to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In April 2004, a VAMC record showed the Veteran did not report he had problems with his ears – including tinnitus, vertigo, pain, or decreased hearing. In December 2014, a VAMC record showed that the Veteran did not report decreased hearing. In March 2015, the Veteran underwent a VA audiological examination. The examiner noted the Veteran was a wireman for an artillery unit and had industrial maintenance noise exposure after service. As to the Veteran’s tinnitus, the examiner noted that the Veteran did not recall the onset of his tinnitus. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 40 45 60 LEFT 40 40 55 65 75 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 92 percent in the left ear. Thus, the Veteran met the threshold for a hearing disability for VA purposes. The examiner indicated that the Veteran’s hearing loss was less likely than not related to his active duty service as he had normal hearing upon separation from service and that the Veteran had been employed in a high noise job since leaving service and had not used hearing protection. The examiner also noted that the Veteran’s hearing had improved while in-service. Additionally, the examiner opined that the Veteran’s tinnitus was related to his hearing loss and, thus, was also less likely caused by military noise exposure. In May 2016, the Veteran submitted a statement which indicated he was involved in artillery fire of Howitzer guns. He reported that he wore earplugs, but that the noise from all the guns firing caused his hearing loss. Direct service connection necessitates a link between the Veteran’s service and his hearing loss and tinnitus. However, based on the foregoing, no such link is present. The Veteran’s STRs show that he had normal hearing for his 1977 separation examination and he did not report or indicate that he had hearing loss or tinnitus symptoms or complaints. Furthermore, there is no indication in the medical evidence of record that the Veteran had any complaints of or treatment for hearing loss or tinnitus prior to his April 2015 VA examination. Indeed, VAMC records establish that in 2004 and 2014 the Veteran did not report any issues with his hearing or any symptoms of tinnitus. Thus, the Veteran’s first diagnosis of hearing loss and tinnitus came in his 2015 VA examination – over 35 years after his separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Also, the March 2015 VA examination found the Veterans’ hearing loss less likely than not related to his active duty service, based on the lack of any indication of hearing loss in or within a year of the Veteran’s active duty service and his noise exposure in the years after his service. The examiner also found the Veteran’s tinnitus unrelated to his active duty service. Significantly, the Veteran has not presented or identified any medical opinion that supports the claims for service connection. The Board finds the March 2015 VA examiner’s medical opinion highly probative to the issue of whether the Veteran’s hearing loss and tinnitus are related to service. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file and an interview of the Veteran. The examiner’s review of the Veteran’s claims file consisted of his service treatment records and post-service medical evidence, and his contentions, upon which the examiner relied upon in giving his opinion. It is clear that the examiner took into consideration all relevant factors in giving his opinion. The Board has considered the Veteran’s statements. The Board notes that lay persons such as the Veteran are competent to provide opinions on some medical issues. The Veteran is competent to provide an opinion about when he started noticing hearing loss and tinnitus. In this regard, he is competent to report tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran did not state, however, that his tinnitus started in or within a year of service. Thus, he has not provided any evidence sufficiently specific to indicate that tinnitus manifested in service or the one-year presumptive period, or that there was continuity of symptomatology. Further, the question of whether the Veteran’s hearing loss is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in opining the etiology of hearing loss is an issue that requires the expertise of a medical professional, particularly where, as in this case, there has been a significant passage of time without any documentation of any symptomatology. Therefore, the Veteran is not competent to provide an opinion on the etiology of his hearing loss. While the Veteran can report symptoms that he experiences, he does not have the necessary training to make medical opinions. The Board also notes that an actual diagnosis of sensorineural hearing loss nevertheless requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes, and can have many causes. Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds that the Veteran’s lay assertions in the present case are outweighed by the medical evidence of record. The Board finds the VA examination more persuasive than the testimony regarding the onset of the Veteran’s hearing loss. (Continued on the next page)   In sum, the claims file does not contain competent and credible evidence that the Veteran’s bilateral hearing loss and tinnitus are related to service. Accordingly, as the preponderance of the evidence is against the claims for service connection, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel