Citation Nr: 18152705 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 17-65 252 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for a right knee disorder is reopened; the claim is granted to this extent only. New and material evidence having been received, the claim for entitlement to service connection for a left ankle disorder is reopened; the claim is granted to this extent only. New and material evidence having been received, the claim for entitlement to service connection for a left foot disorder is reopened; the claim is granted to this extent only. New and material evidence having been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; the claim is granted to this extent only. New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened; the claim is granted to this extent only. New and material evidence not having been received, the claim for entitlement to service connection for a left knee disorder is not reopened. New and material evidence not having been received, the claim for entitlement to service connection for a low back disorder is not reopened. New and material evidence not having been received, the claim for entitlement to service connection for a right ankle disorder is not reopened. New and material evidence not having been received, the claim for entitlement to service connection for bilateral hearing loss is not reopened. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A November 2015 rating decision denied service connection for a right knee disorder, a left knee disorder, a right ankle disorder, a left ankle disorder, a left foot disorder, a low back disorder, bilateral hearing loss, tinnitus, and PTSD. Although the Veteran filed a notice of disagreement in February 2016, he did not timely perfect an appeal of these issues. 2. The November 2015 rating decision is final with respect to the issues of entitlement to service connection for a right knee disorder, a left knee disorder, a right ankle disorder, a left ankle disorder, a left foot disorder, a low back disorder, bilateral hearing loss, tinnitus, and PTSD. 3. Evidence received since the November 2015 rating decision is new and material to the claims for entitlement to service connection for a right knee disorder, a left ankle disorder, a left foot disorder, PTSD, and tinnitus. 4. Evidence received since the November 2015 rating decision is not new and material to the claims for entitlement to service connection for a left knee disorder, a low back disorder, a right ankle disorder, or bilateral hearing loss. CONCLUSIONS OF LAW 1. The November 2015 rating decision is final with respect to the Veteran’s claims to establish service connection for a right knee disorder, a left knee disorder, a right ankle disorder, a left ankle disorder, a left foot disorder, a low back disorder, bilateral hearing loss, tinnitus, and PTSD. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the November 2015 rating decision is new and material, and the claims for entitlement to service connection for a right knee disorder, a left ankle disorder, a left foot disorder, PTSD, and tinnitus are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The evidence received since the November 2015 rating decision is not new and material, and the claims for entitlement to service connection for a left knee disorder, a low back disorder, a right ankle disorder, and bilateral hearing loss are not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2008 to January 27, 2012, and from January 28, 2012 to December 2014. The Veteran’s period of service from January 2012 to December 2014 has been determined to be dishonorable for VA benefits purposes. Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Because the Board is granting the Veteran’s claims to reopen the issues of entitlement to service connection for a right knee disorder, a left ankle disorder, a left foot disorder, PTSD, and tinnitus, any error committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed. With respect to the claims to reopen the issues of entitlement to service connection for a left knee disorder, a low back disorder, a right ankle disorder, and bilateral hearing loss, 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. The Veteran’s claim was filed as fully-developed claim pursuant to the Secretary’s program to expedite VA claims. Under this framework, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. The fully developed claim form includes notice to the Veteran of what evidence is required to reopen a claim for service connection and of his and VA’s respective duties for obtaining evidence. Thus, the notice that is part of the claim form submitted by him satisfies the duty to notify. The duty to assist the Veteran has also been satisfied in this case. The Veteran’s service treatment records have been obtained. 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Although the Veteran was not provided with VA examinations assessing the etiology of his alleged left knee disorder, low back disorder, right ankle disorder, or bilateral hearing loss, examinations were not required in this case. VA regulations provide that no VA examination is required unless new and material evidence is presented to reopen a previously adjudicated claim. 38 U.S.C. § 5103A(d)(1), (2); 38 C.F.R. § 3.159(c)(4); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Because these issues were not reopened, no VA examination was required. 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). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). New and Material Evidence Service connection may be established for a disability resulting from diseases or injuries which are 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). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right knee disorder The RO denied entitlement to service connection for a right knee disorder in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for a right knee disorder because the evidence of record did not show that the Veteran experienced right knee symptoms during service and because the evidence did not show that the Veteran’s right knee disorder was etiologically related to his active duty service. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. In his September 2017 notice of disagreement, the Veteran explained that he received treatment for a right knee injury during his first period of active duty service, in July 2008. This evidence is new because it was not of record at the time of the November 2015 rating decision. It is material because it suggests that the Veteran experienced right knee symptoms during service, which was the basis for the RO’s November 2015 denial of his claim. See Justus, 3 Vet. App. 512 -13 (the credibility of the evidence is presumed). Accordingly, the Veteran’s claim for entitlement to service connection for a right knee disorder is reopened. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left ankle disorder The RO denied entitlement to service connection for a left ankle disorder in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for a left ankle disorder because the evidence of record did not show that the Veteran experienced left ankle symptoms during service and because the evidence did not show that the Veteran’s left ankle disorder was etiologically related to his active duty service. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. In his September 2017 notice of disagreement, the Veteran explained that he received treatment for his left ankle during his first period of active duty service, in August 2011. This evidence is new because it was not of record at the time of the November 2015 rating decision. It is material because it suggests that the Veteran experienced left ankle symptoms during service, which was the basis for the RO’s November 2015 denial of his claim. See Justus, 3 Vet. App. 512 -13 (the credibility of the evidence is presumed). Accordingly, the Veteran’s claim for entitlement to service connection for a left ankle disorder is reopened. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left foot disorder The RO denied entitlement to service connection for a left foot disorder in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for a left foot disorder because the evidence of record did not show that the Veteran experienced left foot symptoms during service and because the evidence did not show that the Veteran’s left foot disorder was etiologically related to his active duty service. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. In his September 2017 notice of disagreement, the Veteran explained that he injured his left foot during service at the same time that he injured his left ankle. This evidence is new because it was not of record at the time of the November 2015 rating decision. It is material because it suggests that the Veteran injured his left foot during service, which was the basis for the RO’s November 2015 denial of his claim. See Justus, 3 Vet. App. 512 -13 (the credibility of the evidence is presumed). Accordingly, the Veteran’s claim for entitlement to service connection for a left foot disorder is reopened. 4. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD The RO denied entitlement to service connection for PTSD in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for PTSD because the evidence of record did not show a clinical diagnosis of PTSD which conforms to the DMS-5. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. With regard to PTSD, the Veteran reported that he experienced some of the symptoms of PTSD including angry outbursts such as “road rage.” He also explained that he believed that his psychiatric symptoms had worsened since his denial of service connection for PTSD, and that he experienced symptoms of sleep disturbance, difficulty concentrating, memory problems, anger problems, anxiety, and depression. The Veteran’s lay statements are new, as they were not of record at the time of the November 2015 rating decision. Although the Veteran is not competent to self-diagnose PTSD, his statements are material because they suggest a worsening of psychiatric symptomatology and raise the possibility that the Veteran’s symptoms may meet the criteria for a diagnosis of PTSD. Because the RO denied the Veteran’s claim in November 2015 because the evidence did not show a diagnosis of PTSD, and because the Veteran has presented competent and credible statements suggesting that his psychiatric symptoms have worsened since that time and may now meet the criteria for a diagnosis of PTSD, the Board accepts the Veteran’s lay statements as new and material evidence. Accordingly, the Veteran’s claim for entitlement to service connection for PTSD is reopened. 5. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for tinnitus The RO denied entitlement to service connection for a tinnitus in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for tinnitus because the evidence of record did not show that the Veteran had a clinical diagnosis of tinnitus. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. In his December 2017 substantive appeal, the Veteran reported that he experienced ringing in his ears. This evidence is new because it was not of record at the time of the November 2015 rating decision. It is material because it suggests that the Veteran has a current diagnosis of tinnitus. In that regard, the U.S. Court of Appeals for Veterans Claims (Court) has held that tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, the credibility of the Veteran’s lay statements is presumed. See Justus, 3 Vet. App. 512-13. Because the Veteran’s claim for entitlement to service connection for tinnitus was denied on the basis that the Veteran did not have a diagnosis of tinnitus, and because the Veteran has provided competent and credible lay statements that he does have tinnitus, the Veteran’s claim for entitlement to service connection for tinnitus is reopened. 6. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left knee disorder The RO denied entitlement to service connection for a left knee disorder in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for a left knee disorder because the evidence of record did not show evidence of a left knee disorder during service and because there was no evidence linking the Veteran’s left knee disorder to his active duty service. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. None of the lay statements submitted pertain to the Veteran’s claimed left knee disorder. Accordingly, there is no new and material evidence received, and the claim for entitlement to service connection for a left knee 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 left knee disorder, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 7. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disorder The RO denied entitlement to service connection for a low back disorder in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for a low back disorder because the evidence of record did not show evidence of a low back disorder during the Veteran’s period of honorable service and because there was no evidence linking the Veteran’s low back disorder to his honorable period of active duty service. In that regard, the RO acknowledged that there was treatment for low back symptomatology during the second period of service which has been found to be not honorable for VA compensation purposes, but explained that there was no evidence of low back symptoms during the Veteran’s period of service for which he is entitled to VA compensation benefits. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. In a December 2017 substantive appeal, the Veteran indicated that he experienced pain in his back before his first treatment but that he did not seek treatment for the pain. The Veteran’s lay statements are new, as they were not of record at the time of the November 2015 rating decision. However, the Board does not find the statements to be material. The Board acknowledges that the credibility of the statements is presumed in this instance. However, the statement provided in the December 2017 substantive appeal refers vaguely to having experienced low back pain before he first sought treatment and does not specifically state that the Veteran experienced low back symptomatology during his first period of active duty service. Accordingly, the Board does not find that the December 2017 lay statement shows that the Veteran experienced symptoms of a low back disorder during his first period of active duty service. Thus, although the evidence received since the November 2015 rating decision is new, it is not material to the Veteran’s claim, and the claim for 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, 5 Vet. App. at 467. 8. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right ankle disorder The RO denied entitlement to service connection for a right ankle disorder in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for a right ankle disorder because the evidence of record did not show evidence of a right ankle disorder during service and because there was no evidence linking the Veteran’s right ankle disorder to his active duty service. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. With regard to the right ankle, the Veteran noted only that service connection for a right ankle disorder should be granted as secondary to a left ankle disorder. In this statement, the Veteran raised a new theory of entitlement, as he has not before alleged that service connection for a right ankle disorder is warranted on a secondary basis. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Lay contentions to support new theories alone are not competent evidence, and cannot serve to support reopening of a claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Veteran’s unsupported lay statement, by itself, does not constitute new and material evidence. Accordingly, there is no new and material evidence received, and the claim for entitlement to service connection for a right ankle 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 right ankle disorder, the benefit of the doubt doctrine is not applicable. Annoni, 5 Vet. App. at 467 (1993). 9. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss The RO denied entitlement to service connection for bilateral hearing loss in a November 2015 rating decision and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement in February 2016. In January 2017, the RO issued a statement of the case as to this issue; however, the Veteran did not timely file a substantive appeal or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the November 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2015 rating decision denied service connection for bilateral hearing loss because the evidence of record did not show a current bilateral hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. This finding was based upon an October 2015 VA audiological examination. In a July 2017 rating decision and November 2017 statement of the case, the RO determined that new and material evidence was not presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim 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). Thus, 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. The only evidence received since the November 2015 rating decision consists of the Veteran’s lay statements. In a December 2017 substantive appeal, the Veteran stated that he had difficulty hearing because everything sounded muffled. Although the December 2017 lay statement is new evidence, because it was not of record at the time of the November 2015 rating decision, the statement is not material because it does not show that the Veteran had or has bilateral hearing loss for VA purposes at any time during the pendency of the appeal. While the Veteran is competent to report what comes to him through his senses, including diminished hearing capacity, he is not competent to assess that such hearing loss meets the criteria for hearing loss disability as set forth in 38 C.F.R. § 3.385. See Layno v. Brown, 6 Vet. App. 465 (1994). Rather, such may only be established by audiometric testing. As noted above, impaired hearing is considered a disability for VA purposes when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. Because none of the evidence received since the November 2015 rating decision shows bilateral hearing loss meeting the definition of a hearing loss disability for VA purposes, none of the new evidence received raises a reasonable possibility of substantiating the claim for service connection; accordingly, none of the evidence received since the November 2015 rating decision is material. Therefore, the issue of entitlement to service connection for bilateral hearing loss 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, 5 Vet. App. at 467 (1993). REASONS FOR REMAND Entitlement to service connection for a right knee disorder, a left ankle disorder, a left foot disorder, PTSD, and tinnitus are remanded. With regard to the Veteran’s claims for entitlement to service connection for a right knee disorder, a left ankle disorder, a left foot disorder, and tinnitus, the Veteran should be afforded VA examinations to assess the existence and etiology of his claimed disorders. The Veteran’s service treatment records reflect symptoms of a left ankle disorder and a right knee disorder during his period of honorable service. Additionally, the Veteran has provided competent statements that he experienced symptoms of a left foot disorder and tinnitus during his honorable period of active duty service. As the Veteran has not yet been afforded a VA examination assessing these disabilities, a VA examination is warranted. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159 (c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran should also undergo a new VA psychiatric examination to determine the existence and etiology of all psychiatric disabilities. In October 2015, the Veteran underwent a VA PTSD examination. The VA examiner who conducted the examination concluded that the Veteran did not meet the criteria for a diagnosis of PTSD based upon his limited symptomatology, although the Veteran’s reported stressor was sufficient to establish a diagnosis of PTSD and was related to his fear of hostile military or terrorist activity. Since that time, the Veteran has submitted lay statements suggesting a worsening of his psychiatric symptomatology. Accordingly, the Veteran should undergo a new VA examination to determine whether his symptoms are now sufficient to establish a diagnosis of PTSD. The matters are REMANDED for the following action: 1. Provide the Veteran with VA examinations conducted by an appropriate clinician to determine the existence and etiology of his right knee disorder, left ankle disorder, left foot disorder, and tinnitus. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran has a current right knee disorder, left ankle disorder, left foot disorder, or tinnitus which were caused by or incurred as a result of the Veteran’s active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran’s lay statements regarding in-service and post-service symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology, including tinnitus. 2. Provide the Veteran with a new VA psychiatric examination, conducted by a psychiatrist or a psychologist, to determine the existence and etiology of his claimed PTSD. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be completed. Following review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a.) Does the Veteran’s symptomatology meet the diagnostic criteria for PTSD now or at any time during the appeal period? (b.) If PTSD is diagnosed at any time during the appeal period, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis. The examiner is asked to provide a complete explanation and rationale for the opinion(s) provided. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation, and that his lay statements should be considered credible for the purposes of the examination. (Continued on the next page)   3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide another supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel