Citation Nr: 20021420 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-28 730 DATE: March 25, 2020 ORDER The request to reopen the claim for service connection for tinnitus is granted. The request to reopen the claim for service connection for bilateral hearing loss is granted. The request to reopen the claim for service connection for a lower back condition is granted. The request to reopen the claim for service connection for a right shoulder condition is denied. The request to reopen the claim for service connection for a left ankle condition is denied. Service connection for tinnitus is denied. Service connection for bilateral hearing loss is denied. Service connection for a traumatic brain injury (TBI) is denied. REMANDED Service connection for a lower back condition is remanded. FINDINGS OF FACT 1. Evidence received since a final May 2015 rating decision is new and material and raises a reasonably possibility of substantiating the claim for service connection for tinnitus. 2. Evidence received since a final May 2015 rating decision is new and material and raises a reasonably possibility of substantiating the claim for service connection for bilateral hearing loss. 3. Evidence received since a final March 2016 rating decision is new and material and raises a reasonably possibility of substantiating the claim for service connection for a lower back condition. 4. The Veteran did not appeal a March 2016 rating decision which denied service connection for a right shoulder condition and evidence received since that decision is not new and material. 5. The Veteran did not appeal a March 2016 rating decision which denied service connection for an ankle condition and evidence received since that decision is not new and material. 6. Tinnitus was not shown as chronic in service and did not manifest to a compensable degree within one year; continuity of symptomatology is not established; and it is not otherwise etiologically related to noise exposure in service. 7. Bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within one year; continuity of symptomatology is not established; and it is not otherwise etiologically related to noise exposure in service. 8. The preponderance of the evidence of record is against finding that the Veteran has had a TBI at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for service connection for tinnitus are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening a claim for service connection for bilateral hearing loss are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for reopening a claim for service connection for a lower back condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for reopening a claim for service connection for a right shoulder condition are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 5. The criteria for reopening a claim for service connection for a left ankle condition are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1974 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision. New and Material Evidence Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the old disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decisionmakers, and “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 of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Tinnitus and Bilateral Hearing Loss The Veteran was previously denied service connection for tinnitus and bilateral hearing loss in a May 2015 rating decision. The Veteran did not appeal this decision and therefore it is final. Since that decision, additional evidence has been received, including an August 2019 VA examination. This evidence is new because it was not part of the record at the time of the May 2015 rating decision. Further, this evidence is also material because it discusses the state of the Veteran’s tinnitus and hearing loss which raises a reasonable possibility of substantiating the claim. As new and material evidence has been received, both the claims for tinnitus and bilateral hearing loss are reopened. Lower Back Condition The Veteran was previously denied service connection for a lower back condition in a March 2016 rating decision. The Veteran did not appeal this decision and therefore it is final. Since that decision, additional evidence has been received, including July 2019 VA medical records illustrating the Veteran’s claimed back pain. This evidence is new because it was not part of the record at the time of the March 2016 rating decision. Further, this evidence is also material because it corroborated the Veteran’s claimed back pain which raises a reasonable possibility of substantiating the claim. As new and material evidence has been received, the claim is reopened. Right Shoulder Condition and Left Ankle Condition The Veteran was previously denied service connection for a right shoulder condition and left ankle condition in a March 2016 rating decision. The Veteran did not appeal this decision and therefore it is final. Since that decision, the Veteran has not submitted any additional evidence that could be considered new and material. Rather, there has been no additional evidence submitted by the Veteran pertaining to any claimed right shoulder or left ankle disability since the March 2016 rating decision. As there has been no new evidence submitted to substantiate the right shoulder claim, the Veteran’s request to reopen the claim for service connection is denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss and tinnitus, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Tinnitus Tinnitus is a condition which the Veteran can diagnose himself. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board concludes that, while the Veteran has tinnitus, which is a chronic disease 38 C.F.R. § 3.309 (a), it was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records are silent for any complaints of tinnitus. The only report of tinnitus is found in the August 2019 VA examination where the Veteran stated that his tinnitus had its onset in 1975. Although the Veteran claims that his tinnitus began during service, the Board finds there is no continuity of symptomatology as there are no complaints of tinnitus in the record other than what is stated in the August 2019 VA examination. In sum, the lack of any relevant findings in service, the lack of any complaints of tinnitus in medical records either during or after service, clearly and convincingly rebuts any claim that undocumented tinnitus was otherwise present in service. Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and an in-service injury, event or disease, including noise exposure. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The August 2019 VA examiner conceded noise exposure in-service as a result of the Veteran’s MOS of cannon crewmember; however, the examiner opined that the Veteran’s tinnitus is less likely than not related to noise exposure in service. This was based on the lack of any audiology treatment as well as the lack of any documented complaint of tinnitus in the record. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran’s tinnitus to service. While the Veteran is competent to diagnose his own tinnitus, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which does not support a link between current tinnitus and service, and service connection is not warranted. Bilateral Hearing Loss Hearing loss is measured by auditory thresholds and speech recognition scores. For VA purposes, a current hearing loss disability requires auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz to be 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The first element of service connection, a current disability, has been met because a VA examination in August 2019 recorded auditory thresholds which establish bilateral hearing loss for VA purposes. As discussed above, VA has also recognized noise exposure associated with the Veteran’s duties in service. Notwithstanding this noise exposure, the auditory thresholds recorded during the Veteran’s July 1974 induction examination showed a mild hearing loss that was noted to be within normal limits thereafter. Further, the November 1975 separation examination showed the same mild hearing loss with no significant permanent shift in hearing thresholds beyond test variability. show hearing loss for VA purposes., Although mild hearing loss was noted in the entrance and separation examination, the Veteran’s conceded noise exposure in-service is enough to satisfy the second element. Unfortunately, the third element, a link between current hearing loss and noise exposure in service, has not been met. The August 2019 VA examiner concluded that the Veteran’s hearing loss was less likely than not related to his service. The examiner stated that although noise exposure is conceded, auditory damage and hearing loss are not conceded based on noise alone. Therefore, there must be a nexus of auditory damage to relate current hearing loss to the military noise. The examiner ultimately concluded that no such nexus exists in the present case due to the lack of complaints of hearing loss while in-service. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran’s hearing loss to noise exposure in service. To the extent that the Veteran himself has asserted such a link, he does not possess the requisite medical knowledge or training to render such an opinion. As noted above, service connection for chronic diseases like hearing loss can also be achieved by establishing that continuous symptoms of the disease have been present since service. Here, the Veteran has not presented any evidence establishing any continuity of symptomatology. Rather, the only evidence regarding a hearing loss claim can be found in the Veteran’s previous claims for hearing loss, which were subsequently denied for failure to prove a current diagnosis, further establishing a lack of continuity of symptomatology. Because neither continuity of symptomatology or a competent link between current hearing loss and service has been established, service connection is not warranted. TBI The Veteran contends that he sustained a TBI as the result of a fall when he was 6 years old. There are no medical records available to corroborate this contention. Further, the Veteran’s entrance examination is silent for any complaints of past brain injuries. Further, there is nothing in the record, other than the Veteran’s contention, that shows a diagnosis of a TBI, or any brain related condition. Therefore, the Board concludes that the Veteran does not have a current diagnosis of a TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. While the Veteran believes he has a current TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, and while the Veteran served as a corpsman during service, he has not shown the specialized medical education or knowledge to diagnose a TBI, particularly when such a diagnosis includes the use of MRIs and other imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Without a current TBI diagnosis, service connection is not warranted. REASONS FOR REMAND Service connection for a lower back condition VA medical records dated July 2019 note that the Veteran recently went to the emergency room as a result of back pain. However, these records are not currently associated with the file. Therefore, the Board finds that a remand is necessary to obtain all medical records relevant to the Veteran’s claim. The matter is REMANDED for the following action: Ask the Veteran to identify all recent treatment for his back, including the 2019 emergency room visit. Obtain all identified records. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.