Citation Nr: 20028014 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 17-52 871 DATE: April 21, 2020 ORDER The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. A January 1989 rating decision denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision. 2. The evidence obtained since the January 1989 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for bilateral hearing loss. 3. The weight of the evidence is against a finding that the Veteran’s tinnitus began during service, within one year of separation from service, or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted, and the Veteran’s request to reopen his previously denied claim for entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1986 to July 1988. Additional evidence has been received following the October 2017 statement of the case, that it is not accompanied by a waiver of RO review. However, the Board has determined that this evidence, which pertains to treatment for bilateral hearing loss is not “pertinent” as defined at 38 C.F.R. § 20.1304(c). Accordingly, a remand for RO consideration is not required. Reopening Claim 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. 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). When determining whether the 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). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In September 1988, the Veteran filed a claim for entitlement to service connection for bilateral hearing loss, which was denied by an January 1989 rating decision, and the Veteran neither appealed the rating decision, nor submitted any new and material evidence pertaining to this issue within a year of that rating decision, meaning that the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the January 1989 rating decision, the claims file contained no evidence showing the Veteran had bilateral hearing loss for VA purposes. In a statement received in October 2016, the Veteran sought to have his previously denied claim for bilateral hearing loss reopened asserting that his bilateral hearing loss was due to his active service. The medical evidence dated after the January 1989 rating decision consists of additional VA treatment records and private treatment records. Previously, the Veteran was afforded a VA examination in November 1988, four months after his separation from service. After interviewing the Veteran, reviewing the Veteran’s claims file, and conducting an examination, the examiner reported that the Veteran’s hearing was within normal limits. Audiological testing did not show hearing loss for VA purposes. In November 2016, the Veteran was afforded a new VA examination. Audiological testing showed bilateral hearing loss for VA purposes. A September 2017 VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not due to his active service. The examiner reported that the Veteran’s STRs showed normal hearing at his November 1985 entrance examination. While the examiner acknowledged that the Veteran’s STRs did not contain audiological testing at his separation examination, the examiner reported at the November 1988 VA examination four months after his separation from active service, the Veteran’s hearing was within normal limits with no standard threshold shifts at the 1000, 2000, 3000, or 4000 hertz levels. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not due to his active service given that there was no standard threshold shift present at the November 1988 VA examination four months after the Veteran’s separation from active service when compared to the Veteran’s enlistment examination. Finally, the Veteran has not submitted any new evidence supporting a nexus between his bilateral hearing loss and his active service. As described above, additional evidence has been submitted since the Veteran’s claim was previously denied; however, while this evidence is new in that it shows that the Veteran now has bilateral hearing loss, the evidence is not material in that it does not suggest a nexus between any bilateral hearing loss and his active service. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described the evidence that has been added since the previous rating decision clearly does not reach that threshold with regard to the issue on appeal. See Shade, 24 Vet. App. 110, 118. Essentially, even if the Board reopened the claim, no duty to assist would be triggered. Accordingly, the request to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran filed his service connection claim for tinnitus, which was denied by a January 2017 rating decision. He asserts that his tinnitus is due to his active service. The Veteran’s STRs contain no complaints, symptoms, treatment, or diagnosis of tinnitus. After the Veteran’s separation from active service, he was afforded a VA examination in November 1988. He did not report any tinnitus. The Veteran’s treatment records also do not show any complaints, symptoms, treatment, or diagnosis for tinnitus. In November 2016, the Veteran was afforded a VA examination. The Veteran reported an intermittent ringing in his ears a few times per week. He reported an onset of shortly after his active service but could not recall the date. In September 2017, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s tinnitus was less likely than not due to his active service. The examiner reported that the Veteran’s STRs showed no complaints of tinnitus during his active service. The examiner reported that the Veteran did not have any complaints of tinnitus at a November 1988 VA examination, which was four months after his separation from active service. The Veteran has not submitted any medical evidence supporting his assertion that his tinnitus is due to his active service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. The September 2017 VA examiner opined that the Veteran’s tinnitus was less likely than not due to his active service. The Veteran’s STRs are silent for any complaints or diagnoses of tinnitus. The Veteran did not report any tinnitus at a November 1988 VA examination four months after his separation from active service. At the November 2016 VA examination, he reported that his tinnitus began after his active service but could not recall the date. Based on the foregoing, it is not shown that the Veteran’s tinnitus had its onset in service or within one year of his separation of service. Therefore, it is also not shown that the Veteran has had tinnitus continuously since service. The Board acknowledges that the United States Court of Appeals for Veterans Claims has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation, and that lay testimony may provide sufficient support for a claim of service connection. However, here, the Veteran has not asserted that he first noticed tinnitus in service or within one year of service separation. As such, the weight of the evidence is against a finding that the Veteran’s tinnitus either began during or was otherwise caused by his military noise exposure. (Continued on the next page)   Therefore, after weighing all the evidence, the Board finds great probative value in the September 2017 VA examiner’s opinion. Thus, the evidence fails to establish service connection for the Veteran’s tinnitus. Accordingly, the criteria for service connection for tinnitus has not been met, and the Veteran’s claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.