Citation Nr: 18156327 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-30 440 DATE: December 7, 2018 ORDER The petition to reopen the claim of entitlement to service connection for tinnitus is denied. The petition to reopen the claim of entitlement to service connection for anxiety associated with sleep problems, to include insomnia, is denied. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for tinnitus was denied by a November 2010 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one year. 2. All of the evidence submitted since the November 2010 RO rating decision pertaining to the issue of entitlement to service connection for tinnitus is either cumulative and redundant or does not relate to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s claim of entitlement to service connection for anxiety associated with sleep problems, to include insomnia, was denied by a November 2010 RO rating decision (after a March 2010 RO rating decision denied service connection for insomnia); the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one year. 4. All of the evidence submitted since the November 2010 RO rating decision pertaining to the issue of entitlement to service connection for anxiety associated with sleep problems, to include insomnia, is either cumulative and redundant or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for tinnitus have not been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 2. The criteria for reopening the claim of entitlement to service connection for anxiety associated with sleep problems, to include insomnia, have not been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on inactive duty training from August 2006 to February 2007, and on active duty from December 2008 to January 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in various rating decisions over several years, the RO has adjudicated issues characterized as (1) entitlement to service connection for insomnia, and (2) entitlement to service connection for anxiety associated with sleep problems. The anxiety issue is formally on appeal before the Board at this time. Upon review of the Veteran’s contentions in the context of this appeal, the Board finds that the anxiety issue overlaps and encompasses the insomnia issue that has been sometimes adjudicated separately. The Board has recharacterized and adjudicated the matters on appeal accordingly, so that the Veteran’s contentions regarding “anxiety associated with sleep problems” includes consideration of his contentions regarding “insomnia.” Petitions to Reopen Claims Subject to Prior Final Denials 1. The petition to reopen the claim of entitlement to service connection for tinnitus is denied. 2. The petition to reopen the claim of entitlement to service connection for anxiety associated with sleep problems, to include insomnia, is denied. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The Court has held that the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, when VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3). Absent the submission of evidence that is sufficient to reopen the claim, the Board’s analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to undertake an examination of the merits of the claim. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran’s petitions to reopen the claims of entitlement to service connection for (1) tinnitus and (2) anxiety associated with sleep problems. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board notes that it has reviewed all of the evidence in the Veteran’s claims-file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. A March 2010 RO rating decision denied service connection for insomnia. A November 2010 RO rating decision denied service connection for (1) tinnitus and (2) anxiety associated with sleep problems. The basis of the denial of service connection for tinnitus was the RO’s finding that there was no evidence of record (aside from the Veteran’s own assertion in raising the claim) indicating that the Veteran had tinnitus that had any onset during military service or other manner of etiological link to his military service. The basis of the denials of service connection for insomnia and anxiety associated with sleep problems was the RO’s finding that there was no evidence of record (aside from the Veteran’s own assertion in raising the claims) showing that the Veteran had insomnia / anxiety associated with sleep problems that had any onset during military service or other manner of etiological link to his military service. The Veteran did not timely appeal the March 2010 or November 2010 denials, as no notice of disagreement was filed within a year of either decision’s issuance. See 38 C.F.R. § 20.302(a). No new and material evidence pertinent to either issue was submitted within a year following the November 2010 adjudication denying these claims. 38 C.F.R. § 3.156(b). The November 2010 RO denial is a final decision on these issues, and neither issue addressed in the November 2010 RO decision has remained pending following the November 2010 adjudication. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. (The March 2010 denial also became final with regard to the insomnia issue, but has been subsumed by the later November 2010 RO rating decision that serves as the pertinent prior final denial of service connection for insomnia / anxiety associated with sleep problems.) In December 2014, the Veteran filed a petition to reopen the previously denied claims of entitlement to service connection for (1) tinnitus and (2) insomnia / anxiety associated with sleep problems. The Veteran requested that the issues be reopened, and he characterized his claimed insomnia / anxiety problems as “related to: PTSD - Personal Trauma.” He did not provide testimony regarding any traumatic events associated with service nor otherwise specify his contention in this regard. The Veteran did not otherwise present specific contentions on these matters in the December 2014 petition to reopen these claims. At the time of the November 2010 final decision, the evidentiary record featured the Veteran’s service treatment records, which contain documentation of July 2009 referrals for mental health and audiology evaluations. The service treatment records contain documentation of audiometric testing showing no clinical abnormalities and no suggestion of tinnitus. The evidence of record at the time of the November 2010 final decision also included the Veteran’s testimony, including in written statements from July 2010 and October 2010, generally describing exposure to acoustic trauma during service in addition to his recollection of experiencing anxiety and stressful circumstances involving his duty in posts and patrols in combat zones. The evidence of record at the time of the November 2010 final decision also featured an October 2009 VA psychiatric examination report indicating that the Veteran “has no impairment on a psychiatric basis.” Finally, the evidence of record at the time of the November 2010 final decision featured documentation that the Veteran failed to report for a November 2010 VA audiology examination in connection with his tinnitus claim; the November 2010 RO rating decision notified the Veteran of the significance of his failure to report for the VA audiology examination. Since the time of the November 2010 final decision, new documentation added to the claims-file features the Veteran’s December 2014 petition to reopen with a reference to his anxiety / insomnia representing a psychiatric disorder related to service and making a general reference to trauma. The Board notes that the Veteran’s reference to trauma was accompanied by a reference to posttraumatic stress disorder (PTSD), with the Veteran indicating that his anxiety / insomnia was “related to: PTSD - Personal Trauma.” This prompted the RO to adjudicate a new separate issue of entitlement to service connection for PTSD alongside the adjudication of the petition to reopen the claim of entitlement to service connection for anxiety / insomnia. The RO’s February 2015 rating decision denied service connection for PTSD alongside a denial of the petition to reopen claims of entitlement to service connection for anxiety and insomnia. The Veteran did not appeal the denial of service connection for PTSD, and the matter currently before the Board is the Veteran’s appeal specifically of a June 2015 RO rating decision denying the petitions to reopen the anxiety / insomnia and tinnitus claims. The Board finds that the Veteran’s December 2014 reference to “personal trauma,” with no clear specification of a link to service or other testimony identifying any pertinent events, is not material evidence tending to establish an unestablished element of the claim of entitlement to service connection for anxiety / insomnia. New documentation added to the records since the November 2010 final decision also features the Veteran’s June 2015 written statement. The Veteran’s June 2015 statement cited that he had never had a VA examination of his tinnitus claim and maintained his assertion that he has tinnitus. The Veteran’s June 2015 statement also stated that the Veteran maintained his assertion that he has anxiety “every now and then” and that he has to “go to the gym to help....” The evidence of record at the time of the November 2010 final decision already included the Veteran’s own assertions that he suffers from tinnitus and that he suffers from anxiety. Thus, the June 2015 statement does not present new and material evidence on these issues. New documentation added to the records since the November 2010 final decision also features the Veteran’s July 2015 written statement. In this statement, the Veteran again describes that he experiences tinnitus (“ringing [i]n my ears”) and explains: “I don’t have anything to support my claim. But if I can get any medical help for it, it would be greatly appreciated.” The Board understands the Veteran’s desire for medical treatment and sympathizes with him. However, for the purposes of this analysis, the Board must conclude that the July 2015 statement does not present new and material evidence to reopen a claim for service connection. New documentation added to the records since the November 2010 final decision also features the Veteran’s June 2016 written statement. The Veteran’s June 2016 statement explained again that “I get ringing in my ears and not able to focus on what I’m doing during those times.” Additionally, the Veteran explained that he believes he has an “anxiety problem” because he “get[s] panicky, overthinks of situations and sometimes not able to sleep. I also get jittery sometimes....” The evidence of record at the time of the November 2010 final decision already included the Veteran’s assertions that he suffers from tinnitus and anxiety. The June 2016 statement does not present new and material evidence on these issues. The Board also notes that the Veteran’s June 2016 statement states that he did not receive notice of his November 2010 VA audiology examination appointment associated with the prior final adjudication of his tinnitus claim. However, the Veteran does not assert any failure to receive the November 2010 RO rating decision that cited the failure to report for the examination in the denial of his tinnitus claim. The Veteran did not appeal the November 2010 denial, and raising a new procedural concern regarding that prior final adjudication is not itself new and material evidence regarding the merits of the claim. In the June 2016 statement, the Veteran further asserts that he did not receive “the VA letter concerning my claim dated April 10, 2015.” The Board briefly notes that the April 2015 development letter sent to the Veteran requested clarification from the Veteran with regard to “whether you are claiming a disability as a result of” his alleged exposure to “open fire pit.” This letter did not pertain to the petitions to reopen that are currently on appeal before the Board. Moreover, the Board notes that the April 2015 letter was sent to the same address that the Veteran subsequently confirmed to be his current address at the time in his June 2015 notice of disagreement. The Board finds that the June 2016 statement neither presents new and material evidence sufficient to reopen either claim on appeal, nor does it otherwise identify any prejudicial occurrence requiring additional action in connection with the petitions to reopen that are currently on appeal. There has been no new pertinent medical evidence added to the record following the November 2010 prior final denial of these claims. Confirmation that the Veteran has not received documented VA medical treatment was added to the claims-file in June 2016. The new documentation of record repeats the Veteran’s previous assertions that he believes that he suffers from tinnitus and anxiety as a result of military service, but the documents added since the November 2010 denial do not include new evidence indicating that the Veteran has tinnitus or anxiety / insomnia that had onset during or is otherwise etiologically linked to his military service. The added documents contain no new evidence that would tend to establish any previously unestablished element of entitlement to service connection for tinnitus or anxiety / insomnia. The Veteran has not otherwise presented any testimony or evidence that identifies new information or development that would tend to establish a previously unestablished element of entitlement to service connection for tinnitus or anxiety / insomnia. Evidence added to the record after the November 2010 prior denial may be new, but it is not material. The evidence added to the record since the November 2010 prior denial presents no reasonable possibility of substantiating either claim, and such evidence is not new and material for the purpose of reopening these claims. Following review of the contents of the claims-file, the Board is unable to find that any item of evidence received since the November 2010 final denial is new and material to the issue of entitlement to service connection for tinnitus or to the issue of entitlement to service connection for anxiety / insomnia. Any added material evidence is duplicative of information in evidence already of record, and any new evidence is not materially pertinent to elements of service connection that were unestablished at the time of the prior final denial of each claim. The prior final denial was based upon the absence of a showing that the Veteran had tinnitus related to his military service and the absence of showing that he had anxiety / insomnia related to his military service. The Veteran’s statements submitted since the November 2010 denial are duplicative of his assertions that were of record prior to the November 2010 denial. None of the evidence submitted after the prior final denial otherwise tends to establish the unestablished facts. The added evidence simply repeats the Veteran’s contentions. Overall, the Board finds no new evidence relating to any unestablished fact necessary to substantiate the Veteran’s claims of entitlement to service connection for tinnitus and entitlement to service connection for anxiety / insomnia. For the above-discussed reasons, the Board concludes that the appellant has not presented new and material evidence sufficient to reopen his claim for service connection for tinnitus, and he has not presented new and material evidence sufficient to reopen his claim of entitlement to service connection for anxiety / insomnia. Accordingly, these petitions to reopen the claims must be denied. See 38 U.S.C. § 5108. New and material evidence has not been received, and the claims of entitlement to service connection for tinnitus and entitlement to service connection for anxiety / insomnia may not be reopened. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel