Citation Nr: 1806551 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-08 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether the claim may be allowed. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for otitis media, right ear, and if so, whether the claim may be allowed. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for an eye condition. 5. Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from May 31, 1967 to June 20, 1967. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and Boston, Massachusetts. The Boston RO otherwise has jurisdiction of the claims folder. In April 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. In a decision dated April 2008, the RO denied the Veteran's claim of service connection for bilateral hearing loss and otitis media, right ear. The Veteran was notified of the decision and did not perfect an appeal. 2. Evidence added to the record since the April 2008 rating decision denying entitlement to service connection for bilateral hearing loss and otitis media, right ear is cumulative or redundant, does not cure a prior evidentiary defect, and does not raise a reasonable possibility of substantiating the Veteran's claims. 3. Complaints of tinnitus were not documented in service or within one year of service discharge; and, the preponderance of the evidence fails to establish that the Veteran's tinnitus is etiologically related to his active service. 4. The preponderance of the available evidence does not demonstrate that the Veteran has an eye condition that was caused by or is otherwise related to his active service. 5. The preponderance of the available evidence is against a finding that the Veteran suffers from residuals of a head injury. CONCLUSIONS OF LAW 1. The April 2008 rating decision denying service connection for bilateral hearing loss and otitis media, right ear is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been presented to reopen claims of entitlement to service connection for bilateral hearing loss and otitis media, right ear. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Tinnitus was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for entitlement to service connection for an eye condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 5. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159, and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the decision on appeal. With regard to the pending new and material claims, examinations are not necessary if no new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). As will be discussed below, the Veteran has not submitted, and VA has not otherwise received, evidence sufficient to reopen the pending claims. Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record. 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence received since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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, 117 (2010). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). This appeal arises out of the Veteran's contention that his claimed bilateral hearing loss and otitis media, right ear are related to his military service. Specifically, the Veteran contends that a drill instructor struck him in the head with a rifle butt, and when he awoke, had no recollection of what had happened. The Veteran then noticed drainage on his pillow from his right ear and reported to the medic. Soon thereafter he was diagnosed with chronic otitis media, which was found by the medical board to be a pre-existing disability, and medically discharged from service. The Veteran has indicated that he has continued to experience symptoms of hearing loss and otitis media since then. The April 2008 rating decision, which considered the Veteran's service treatment records and an assortment of private audiological treatment records, denied the Veteran's claims of service connection for bilateral hearing loss and otitis media, right ear, reasoning that while the Veteran suffers from bilateral hearing loss, no nexus to service was shown and his otitis media was a pre-existing disability. The Veteran was notified, did not appeal the decision, and new and material evidence was not received within a year of that decision. Thus, the April 2008 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. Subsequently, a number of additional records were added to the Veteran's electronic claims file. This evidence consists primarily of the Veteran's private treatment records from several providers and some additional post-service VA treatment records. A review of these records confirms that that the Veteran suffers from bilateral hearing loss, but does not show a nexus to service for it, and simply confirms that his otitis media pre-existed service. The Board notes that the Veteran testified as to these conditions in October 2017. Notably, he explained the incident with his drill instructor and stated that he felt coerced into signing his medical discharge paperwork. These statements essentially corroborate the Veteran's service treatment records and private medical treatment, which were reviewed at the time of the April 2008 rating decision. In other words, the Veteran's service treatment records document his medical discharge due to pre-existing chronic otitis media and the remaining medical treatment records confirm that the Veteran suffers from bilateral hearing loss. Thus, the Board has determined that new and material evidence to reopen the claims of entitlement to service connection bilateral hearing loss and otitis media, right ear have not been received. While new evidence has been received, no material evidence has been received to show a clinically confirmed diagnosis which is linked to military service. In other words, the evidence fails to show bilateral hearing loss was incurred in or is a result of military service, or manifested to a compensable degree within one year of military separation. Moreover, the Veteran's otitis media clearly and unmistakably pre-existed service, which the medical discharge board considered as not incurred in or aggravated by service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. 38 U.S.C. § 5107. Legal Principles - Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a Veteran served for ninety (90) days or more during a period of war, and an organic disease of the nervous system, such as tinnitus, becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in 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. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran had less than 90 days of service so the presumption does not apply. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is recognized by VA as being included with these enumerated diseases. 38 C.F.R. § 3.309(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Tinnitus The Veteran seeks entitlement to service connection for tinnitus. Initially, the Board notes that the Veteran's service treatment records are silent as to any complaints of tinnitus. Importantly, as discussed in a previous section, the Veteran experienced drainage on his pillow from his right ear and reported to the medic, which he claims to have originated from an earlier incident where he was struck in the head by a drill instructor. He was evaluated and found to have chronic otitis media, which a medical board determined to have pre-existed service. Soon thereafter, he was discharged and he has stated that he continues to suffer from tinnitus since that time. The Veteran was afforded a VA examination in June 2013. After a review of the Veteran's electronic claims file, the examiner diagnosed the Veteran with recurrent tinnitus, which was found to be less likely than not (less than 50 percent probability) caused by or a result of military service. The examiner noted that the Veteran had a long history of chronic otitis media prior to service and no in service incidents or complaints of tinnitus. Instead, the examiner stated that the Veteran's tinnitus is likely related to his pre-existing chronic otitis media. The examiner explained that "tinnitus in chronic otitis media is a prevalent condition; studies by [The National Institute of Health] approximate that 45-60 percent of chronic otitis media patients have tinnitus on a sensorineural level." Here, the Board determines that a preponderance of the evidence shows that the Veteran's tinnitus is not related to service. The Board finds the June 2013 VA examiner's reasoning highly probative as he indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran's statements of record. Although the Veteran asserts his tinnitus was caused by an incident in service, diagnosing the etiology of a complex disorder such as tinnitus is outside the scope of a lay person's competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran is competent to report symptoms such as ringing in his ears, his lay assertions offer little support for the claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was medically discharged from service in June 1967 due to pre-existing chronic otitis media. While it is clear that the Veteran suffers from several ear conditions, including hearing loss, there are no medical records indicating any complaints of tinnitus until approximately 2013. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that the lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the fact that the Veteran did not submit a claim for service connection for tinnitus until July 2013, nearly 46 years after separation from service, may be considered as a factor in resolving the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999). There is otherwise no evidence, aside from the Veteran's lay assertions and the fact that there are no medical records documenting complaints of tinnitus until 2013, of a continuity of symptomatology since service. 38 C.F.R. §§ 3.307, 3.309. Therefore, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Eye condition The Veteran seeks entitlement to service connection for an eye condition. Initially, the Board observes that the Veteran's service treatment records are silent as to any eye condition. The Veteran's post-service medical treatment records document complaints of blurred vision and eye floaters. The Board finds that the preponderance of the evidence of record shows no nexus to service has been established for an eye condition. In considering the Veteran's own statements, while he is competent to testify about his symptomatology, he has not provided any probative evidence of a nexus linking his claimed eye condition to any incident in service. The claimed incident with his drill instructor has not been verified and the discharge on his pillow was the result of otitis media, for which he was later discharged. Simply put, no medical professional, VA or otherwise, has suggested that the Veteran's claimed eye condition is etiologically related to service. Furthermore, the Veteran did not file a claim for an eye condition until many years after service. See Maxson at 459. Given the above, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Residuals of a head injury The Veteran seeks entitlement to service connection for residuals of a head injury. Initially, the Board observes that the Veteran's service treatment records are silent as to a head injury. As discussed in length above, the Veteran maintains that he was struck in the head with a rifle butt by a drill instructor, which ultimately resulted in him seeking medical treatment, and he was later found to have pre-existing chronic otitis media and was medically discharged from service. The Board notes that the Veteran's post-service medical treatment records show a self-reported head injury which occurred during basic training. There is no other documented treatment for a head injury. Notably, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms concerning any residuals of a head injury. However, an underlying disability related to a head injury has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of residuals of a head injury during the applicable appeal period. In essence, the evidence of a current diagnosis of a head injury is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to his head requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of residuals of a head injury. 38 C.F.R. § 3.159(a)(1), (2). Moreover, the incident concerning the drill instructor was not documented in his service treatment records, and he did not file a claim for residuals of a head injury until many years after service. In light of the absence of any competent evidence of residuals of a head injury, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and the claim to reopen is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for otitis media, right ear, and the claim to reopen is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for an eye condition is denied. Entitlement to service connection for residuals of a head injury is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs