Citation Nr: 18158902 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-42 606 DATE: December 18, 2018 ORDER The petition to reopen the claim for service connection for a right shoulder disability is denied. The claim for service connection for bilateral hearing loss is reopened. The claim for service connection for tinnitus is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for a left shoulder disability is denied. Service connection for a disability of the cervical spine (claimed as neck condition) is denied. FINDINGS OF FACT 1. The claims for service connection for a right shoulder disability, bilateral hearing loss, and tinnitus were previously denied in an August 2010 rating decision; the Veteran did not perfect an appeal of that decision following issuance of a Statement of the Case (SOC) in May 2012. 2. New and material evidence has not been received with respect to the claim for a right shoulder disability since the May 2012 SOC. 3. New and material evidence has been received with respect to the claims for bilateral hearing loss and tinnitus. 4. The Veteran’s bilateral hearing loss disability is linked to noise exposure during active service. 5. The Veteran’s tinnitus is linked to noise exposure during active service. 6. The Veteran’s left shoulder disability is not linked to disease or injury incurred or aggravated in active service. 7. The Veteran’s disability of the cervical spine is not linked to disease or injury incurred or aggravated in active service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The August 2010 rating decision is final with respect to the claims for a right shoulder disability, bilateral hearing loss, and tinnitus. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302 20.1103 (2017). 2. The criteria for reopening the claim for a right shoulder disability are not satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for reopening the claims for bilateral hearing loss and tinnitus are satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for bilateral hearing loss are satisfied. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for tinnitus are satisfied. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for a left shoulder disability are not satisfied. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. The criteria for service connection for a disability of the cervical spine are not satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 letter from the RO, the Veteran was provided an opportunity to participate in VA’s Rapid Appeals Modernization Program (RAMP). See May 2018 RAMP Opt-In Notice. In June 2018, the Veteran elected to participate in RAMP. See June 2018 RAMP Opt-In Election. Appeals that have been activated by the Board are not eligible for RAMP processing. The issues listed on the front page of this decision were activated by the Board in December 2017, prior to the Veteran’s decision to participate in RAMP. Therefore, the Board will continue with the adjudication of the issues listed on the front page of this decision in accordance with current appeals procedures. New and Material Evidence A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). New and material evidence is defined as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156 (a). To warrant reopening, the new evidence must neither be 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. Id. In determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final. 38 C.F.R. §§ 3.156(b), 3.400(q); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Right Shoulder Disability Although the RO reopened the claim for a right shoulder disability, the Board must determine of its own accord whether reopening is warranted. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether there is new and material evidence to reopen the claim as a jurisdictional matter). For the following reasons, the Board finds that new and material evidence has not been received to reopen the claim for a right shoulder disability. Service connection for a right shoulder disability was previously denied in an August 2010 rating decision. The Veteran initiated an appeal of that decision with a timely NOD. However, he did not perfect the appeal after de novo review of the claim and issuance of an SOC, in May 2012. Accordingly, the August 2010 rating decision became final. See 38 C.F.R. §§ 20.200, 20.302. Pertinent evidence received by VA since the May 2012 SOC are the Veteran’s unsupported statements dated in October 2013 and September 2016 regarding shoulder injuries during service. See October 2013 VA Form 21-4138, Statement in Support of Claim; September 2016 VA Form 9. These statements are cumulative of a similar statement, dated in June 2010, that was of record at the time of the August 2010 rating decision. See June 2010 VA Form 21-4138. Thus, they do not qualify as new and material evidence. See 38 C.F.R. § 3.156(a). Records of treatment of the Veteran’s right shoulder since the August 2010 rating decision are cumulative or redundant of VA and private treatment records that were in the file at the time of that decision. They do not relate to an unestablished fact necessary to substantiate the claim, namely a disease or injury incurred or aggravated in service, and a nexus to such injury or disease. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Accordingly, they do not constitute new and material evidence. See 38 C.F.R. § 3.156(a). In sum, new and material evidence has not been received to reopen the claim for a right shoulder disability. Bilateral Hearing Loss and Tinnitus The claims for service connection for bilateral hearing loss and tinnitus are reopened. The claims for service connection for bilateral hearing loss and tinnitus were originally denied in a June 2006 rating decision. The Veteran did not perfect an appeal of that decision. They were again denied in an August 2010 rating decision. The Veteran initiated an appeal of that decision with a timely NOD. However, he did not perfect the appeal after de novo review of the claim and issuance of an SOC, in May 2012. Accordingly, the August 2010 rating decision became final. See 38 C.F.R. §§ 20.200, 20.302. Since the August 2010 rating decision and May 2012 SOC, the Veteran submitted an April 2018 opinion by a private audiologist supporting a link between the Veteran’s hearing loss and tinnitus and his in-service noise exposure. This opinion is new to the file, and relates to an unestablished fact necessary to substantiate the claim. It is not cumulative or redundant of evidence previously of record, as there was no favorable medical opinion of record at the time of the last prior final denial. Accordingly, it constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss and Tinnitus For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. The August 2016 VA examination report shows that the Veteran’s puretone thresholds, based on audiometric examination, satisfy the criteria for a bilateral hearing loss disability. See 38 C.F.R. § 3.385. The competent and credible evidence also shows that the Veteran has tinnitus, as reflected in the August 2016 VA examination report and a February 2010 private treatment record. See Charles v. Principi, 16 Vet. App. 370 (2002) The balance of the evidence supports a link between the Veteran’s noise exposure during active service and his current hearing loss and tinnitus. As an initial matter, the Board find it credible that the Veteran had in-service noise exposure based on his statements and the circumstances of his service. Cf. 38 C.F.R. § 3.303(a) (service connection for a claimed disability requires consideration of the circumstances of service). His DD 214 shows that he served as an Infantryman. The Department of Defense (DOD) has determined that this MOS entails a high probability of noise exposure. See DOD’s) Duty MOS Noise Exposure Listing; Veterans Benefits Administration Manual, M21-1 III.iv.4.B.3.c. The Veteran has provided competent and credible statements regarding in-service noise exposure from heavy weapons fire during training exercises. See, e.g. June 2010 VA Form 21-4138. These statements are consistent with the circumstances of his service as an Infantryman. Probative evidence supports a link between the Veteran’s current bilateral hearing loss disability and his tinnitus. His service examination reports reflect normal clinical evaluations of his ears and hearing acuity, and audiograms showing puretone thresholds in the normal range. See Hensley, 5 Vet. App. at 157. There is no evidence of hearing loss or tinnitus until 2006 claims for service connection for these disabilities. See January 2006 VA Form 21-4138. Notwithstanding the long period of time between the Veteran’s in-service noise exposure and the earliest evidence of hearing loss and tinnitus, the balance of the evidence supports a link to service. An audiological examination, including puretone threshold testing, was conducted by a private audiologist, J. Dann, M.S. CCC-A, in April 2018. In the examination report, the audiologist opined that the Veteran’s hearing loss and tinnitus were at least as likely as not caused by noise exposure during military service based on his history of excessive noise exposure, and the configuration of his hearing loss. This medical opinion is probative, and supports a nexus between the Veteran’s in-service noise exposure and his hearing loss and tinnitus. In the August 2016 VA examination report, the examiner opined that the Veteran’s hearing loss and tinnitus were less likely than not related to in-service noise exposure. This opinion does not outweigh the April 2018 private opinion. At most, there is an approximate balance of positive and negative evidence on this issue. The Board resolves reasonable doubt in favor of the Veteran, and finds that a nexus is established. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In sum, the criteria for service connection for the Veteran’s bilateral hearing loss and tinnitus are satisfied. See Holton, 557 F.3d at 1366. Left Shoulder Disability The Veteran states that his current left shoulder disability, diagnosed as left glenohumeral arthritis, is linked to injuries sustained in active service, and from the strain of carrying heavy equipment. See October 2013 VA Form 21-4138; September 2016 VA Form 9. For the following reasons, the Board finds that service connection is not established. The preponderance of the evidence weighs against service incurrence of a disease or injury of the left shoulder. The service treatment records do not show treatment or complaints of shoulder problems. In his September 2016 substantive appeal (VA Form 9), the Veteran stated that his shoulder pain during service was treated in the field with Ibuprofen, but that he did not seek treatment on base. The January 1978 separation examination report reflects a normal clinical evaluation of the upper extremities. A May 1983 re-enlistment examination report reflects that the Veteran denied a history of a painful or trick shoulder. The May 1983 re-enlistment examination report again reflects a normal clinical evaluation of the upper extremities. The earliest evidence of shoulder problems is a September 2008 VA treatment record, which reflects that the Veteran reported that both shoulders had been hurting for the past two weeks. There is no mention of an earlier history of shoulder problems. A February 2015 VA treatment record reflects that the Veteran reported a history of left shoulder problems, which had been present for several years. He denied any significant traumatic injury to the shoulder. An X-ray study at this time showed glenohumeral arthritis of the left shoulder. The Veteran’s asserted shoulder problems in service did not occur in combat, and thus the combat presumption does not apply. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). Accordingly, his lay testimony alone is not necessarily sufficient proof of service connection. See id. While the absence of records does not automatically constitute substantive negative evidence, the contemporaneous evidence weighs against the Veteran’s statements in this case. Specifically, his denial of a history of shoulder problems in the May 1983 re-enlistment examination report, and his report of a two-week history of shoulder problems in the September 2008 VA treatment record, weigh against the credibility of the statement that he injured his left shoulder or experienced left shoulder pain in service. Cf. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran). The fact that the Veteran denied a history of significant traumatic injury to the left shoulder in the February 2015 VA treatment record also weighs against the Veteran’s assertion of an in-service injury to that shoulder in light of the other evidence, although the Board is aware that the word “significant” does not preclude the possibility of an in-service shoulder injury that the Veteran did not consider to be significant at the time. Whatever the case may be, and regardless of this record, the evidence discussed in the preceding paragraph independently supports the conclusion that the Veteran’s statements regarding an in-service shoulder injury or symptoms are not credible, for the reasons discussed above. The Veteran stated in the September 2016 VA Form 9 that he was only treated in the field for shoulder problems, which seems to imply that there would be no records of such treatment. The service treatment records furnished by the National Personnel Records Center appear complete, and there is no indication of missing records. The Board thus takes the evidence as it finds it. The Veteran’s unsupported statements regarding in-service shoulder injuries were proffered in support of a claim for benefits, and the Board cannot overlook his bias in this matter. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias”). As the only evidence supporting the claim are such statements, and as the contemporaneous treatment records weigh against their credibility and instead support a finding that the Veteran’s shoulder problems first began some time after service, as discussed above, the Board concludes that the preponderance of the evidence weighs against service incurrence of a disease or injury of the left shoulder. Because an in-service disease, injury, or event is not established, a VA examination or opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159 (c)(4) (2017). In sum, the criteria for service connection for a left shoulder disability on a direct basis are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). The evidence does not show that left shoulder arthritis was noted in service or within a year of separation. Thus, service connection is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis for left shoulder arthritis that manifests to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Because the preponderance of the evidence weighs against the claim, service connection for a left shoulder disability must be denied. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. Cervical Spine The Veteran claims service connection for disability of the cervical spine (neck condition) as secondary to his bilateral shoulder disabilities, or as directly linked to injury incurred in service. See October 2012 VA Form 21-4138; October 2013 VA Form 21-4138; September 2016 VA Form 9. For the following reasons, the Board finds that service connection is not established. The preponderance of the evidence weighs against the credibility of the Veteran’s statement that he injured his cervical spine in service. The evidence does not indicate that the Veteran injured his cervical spine in combat, and thus the combat presumption does not apply. Service treatment records do not reflect treatment or complaints involving the neck. The January 1978 separation examination report and May 1983 re-enlistment examination report reflect a normal clinical evaluation of the spine. The Veteran did not report a history of a neck or spine condition in the May 1983 re-enlistment report of medical history. The earliest evidence of neck pain is a January 2011 private treatment record, which reflects that the Veteran reported hitting his head and experiencing severe pain in his neck. This record notes that the Veteran did not have a history of injuries or impairments to the “affected area,” in reference to the neck. A January 2011 X-ray of the cervical spine was negative. The Veteran was diagnosed with a cervical strain. These contemporaneous records conflict with the Veteran’s unsupported statements, made in the context of supporting a claim for benefits, that he injured his neck in service. The Veteran also reported a thirty-year history of neck pain in a May 2014 VA treatment record, and stated that he injured his neck and was treated while on duty. However, this statement was made during the pendency of this appeal, and stands on the same footing as the other statements made in support of the claim. The Veteran’s bias in this matter and the contemporaneous records showing that he did not report neck pain until after sustaining an injury in January 2011, at which time he denied a history of injury or impairment of the neck, lead to the conclusion that his statements regarding an in-service injury are not credible. Accordingly, the preponderance of the evidence weighs against service incurrence of a disease or injury of the cervical spine. Because an in-service disease, injury, or event is not established, a VA examination or opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159 (c)(4) (2017). In sum, the criteria for service connection for a cervical spine disability on a direct basis are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). A March 2014 VA X-ray study reflects a diagnosis of spondylosis (i.e. arthritis) of the cervical spine. The evidence does not show that cervical spine arthritis was noted in service or within a year of separation. Thus, service connection is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis for cervical spine arthritis that manifests to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Regarding the Veteran’s claim for a cervical spine disability as secondary to his shoulder disabilities, as service connection has not been established for the latter, the criteria for service connection on a secondary basis are not satisfied. See 38 C.F.R. § 3.310). Because the preponderance of the evidence weighs against the claim, service connection for a cervical spine disability must be denied. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel