Citation Nr: 18159691 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-56 309 DATE: December 19, 2018 ORDER New and material evidence having been received, the application to reopen the claim of service connection for tinnitus is granted, and the claim is reopened. Service connection for tinnitus is granted. Service connection for residuals of a traumatic brain injury (TBI) is granted. Service connection for a thoracolumbar spine disorder is denied. Service connection for sinusitis is denied. FINDINGS OF FACT 1. In May 2009, service connection for tinnitus was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 2. The evidence added to the record since the May 2009 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus. 3. The Veteran’s tinnitus first manifested during military service. 4. The Veteran had a traumatic brain injury during service. 5. The Veteran’s thoracolumbar spine disorder and sinusitis are not related to military service. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied the Veteran’s claim of service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the May 2009 rating decision is new and material, the requirements to reopen the claim of service connection for tinnitus are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 4. The criteria for service connection for residuals of a TBI have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 6. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to April 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and June 2015 rating decisions by the Department of Veterans Affairs (VA). New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 1. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus The Veteran is seeking service connection for the previously-denied claim of tinnitus. Based on the additional evidence added to the record since the previous final denial of the Veteran’s claim, the Board finds that new and material evidence has been added to the record. The Veteran’s service connection claim for tinnitus was denied in a May 2009 rating decision. A review of that rating decision reveals that at the time, VA declined to grant service connection because there was no notation of tinnitus symptoms in the Veteran’s service treatment records and there was no showing of exposure to acoustic trauma. He did not appeal that decision within one year, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. Since the last final denial, the Veteran has submitted statements explaining his exposure to acoustic trauma in service. Specifically, he details how he was a hull technician and assigned to a carpentry shop. The Board finds that this evidence is both new as well as material in demonstrating a possible cause of his tinnitus during service. As evidence of an in-service incident is one of the missing necessary elements for service connection, the Board concludes that new and material evidence has been added to the record, and the claim is reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). 2. Service connection for tinnitus The Veteran is seeking service connection for tinnitus. He indicated in a September 2014 statement that while on active duty, he worked as a hull technician and was assigned to a carpentry shop. He was exposed to loud noises from drills, saws, and other equipment. He reports first experiencing tinnitus about three months after beginning work in that shop that has continued to the present day. The Board finds the Veteran’s statements in this regard to be credible. The Board notes that the Veteran is competent to report the presence of tinnitus and has presented a detailed statement that is sufficient to demonstrate that his tinnitus manifested during military service. Consequently, the Board finds that service connection for tinnitus is warranted. In so reaching the above conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Service connection for residuals of a TBI The Veteran is seeking service connection for residuals of a TBI. He reports that in 1983, he fell down the stairs and hit his head hard enough to be knocked out for five to six minutes. Service treatment records document that he fell when running down the stairs in February 1983 and hit his head against the wall. Although the medical provider at the time noted no loss of consciousness, the medical provider did note the Veteran’s report of seeing stars. In October 2014, he underwent a VA examination. The examiner diagnosed the Veteran with an in-service concussion. The examiner specifically cited the Veteran’s difficulties with word-finding as possibly related to his TBI, but noted no other possible residuals. The examiner then concluded that it is most likely that the Veteran suffered a concussion during his time in the military. Consequently, the Board finds that service connection for residuals of a TBI is warranted. 4. Service connection for a thoracolumbar spine disorder 5. Service connection for sinusitis The Veteran asserts that his thoracolumbar spine disorder and sinusitis are related to military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of lumbar spinal stenosis and sinusitis, the preponderance of the evidence is against finding that they began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Initially, the Board acknowledges that the Veteran was not provided with a VA examination for his service-connection claims. However, the Board finds that a VA examination is not required here because competent evidence has not been presented indicating that the existence of a disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s active service. Additionally, there is no evidence to show that the claimed disabilities occurred in service or are associated with service. See McClendon v. Nicholson, 20 Vet App. 79 (2006). The Veteran has attributed his thoracolumbar spine disorder to a fall in service. The fall in February 1983 comprises the basis of his granted service connection claims for scarring and a TBI. However, there is no indication in the detailed medical report that the Veteran suffered any back injury during the fall. The Board would expect for a back injury to be mentioned as the Veteran underwent medical treatment immediately afterwards. Even if his back was injured, there is insufficient evidence to demonstrate that he suffered a back injury that was chronic in nature. Of note, his separation examination was absent of any complaints of or observed symptoms related to a thoracolumbar spine disorder. With regards to the Veteran’s sinusitis claim, service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sinusitis. The Board acknowledges that he was diagnosed with bronchitis in service, but there is no evidence suggesting a link between these two diagnoses. Significantly, the Veteran’s separation examination was absent of any complaints of or observed symptoms related to a sinusitis condition. In fact, the post-service evidence does not reflect symptoms related to a thoracolumbar spine or sinusitis for many years after separation. The first indication of a back disorder by the Veteran’s own account was approximately October 2011, which he reported in an October 2014 medical appointment. The first possible indication of sinusitis was in July 2009, when a medical provider noted chronic sinus problems. As the disorders did not start during service or continue since the time of service, continuity is not established based on the clinical evidence. The Board acknowledges the Veteran’s assertion that his disorders are related to military service. However, there are no indications of a thoracolumbar spine disorder or sinusitis upon his discharge from the military. Moreover, the Board notes that the Veteran submitted claims for other VA benefits, including claims for scarring, bilateral hearing loss, and tinnitus, prior to claiming the issue on appeal. Thus, the Veteran was aware of the VA benefits system, and had the Veteran been experiencing the conditions since service, it is intuitive that he would have submitted a claim for a thoracolumbar spine disorder or sinusitis at the same time he filed the other claims. There are also no indications that the Veteran’s thoracolumbar spine disorder or sinusitis has a nexus with his military service. Specifically, there are no treatment records establishing that the Veteran’s disorders are related to active duty or a service-connected disability, nor has any physician asserted that such a relationship exists. While the Veteran believes his disorders are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires advanced medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Without any basis to suggest that the Veteran’s thoracolumbar spine disorder and sinusitis are related to military service, the Board finds that the weight of the competent evidence does not attribute the disorders to military service.   In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel