Citation Nr: 21000243 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-52 276 DATE: January 4, 2021 ORDER The petition to reopen a claim for service connection for tinnitus is granted and entitlement to service connection for tinnitus on the merits is granted. The petition to reopen a claim for service connection for bilateral hearing loss is granted. The petition to reopen a claim for service connection for bilateral knee disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The RO initially denied the claim for service connection for bilateral hearing loss and tinnitus in November 2013. 2. Since the November 2013 RO decision, evidence has been received that raises a reasonable possibility of substantiating the Veteran’s claim for service connection for bilateral hearing loss and tinnitus. 3. Resolving all doubt in the Veteran’s favor, tinnitus is etiologically related to his period of active service. 4. The RO initially denied the claim for service connection for a bilateral knee disability in April 1965. 5. The additional evidence received or otherwise obtained since that April 1965 rating decision is cumulative or redundant of evidence already considered in that decision or does not raise a reasonable possibility of substantiating the claim for service connection for a bilateral knee disability. CONCLUSIONS OF LAW 1. The November 2013 rating decision that denied the claims for service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.302. 2. The criteria to reopen the claims for service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The April 1965 rating decision that denied the claim for service connection for a bilateral knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.302. 5. The criteria to reopen the claim for service connection for a bilateral knee disability have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from February 1960 to January 1965. The Veteran was afforded a Board hearing in September 2020 before the undersigned Veterans Law Judge. The transcript is of record. Service Connection 1. Petition to reopen claim for service connection for bilateral hearing loss and tinnitus The Veteran maintains that he has bilateral hearing loss that resulted from military service. The RO denied claims for bilateral hearing loss and tinnitus in November 2013. The Veteran did not file an appeal to this decision. The RO relied on the opinion of a VA examiner that concluded that his hearing loss was unrelated to military service. In December 2017, the Veteran filed a petition to reopen the claims for service connection for bilateral hearing loss and tinnitus. The RO denied the petition in a November 2013 rating action. Regardless of the RO’s actions, the Board must still determine whether new and material evidence has been submitted in this Legacy appeal. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran’s previously and finally denied claims). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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). 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). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted 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). The Board has reviewed the evidence of record, to include the testimony before the undersigned. The Board finds that this evidence is new and material as to the claims of service connection for both hearing loss and tinnitus. The claim for service connection for hearing loss is addressed further in the remand. The claim for service connection for tinnitus is adjudicated on the merits. 2. Entitlement to service connection for tinnitus Generally, to establish service connection 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran testified that his tinnitus began in service and has been on and off since service. See Board hearing transcript pgs. 5-6. The Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. Therefore, the Veteran is competent to testify as to the date of onset of his tinnitus symptoms, i.e., ringing in the ears. Moreover, tinnitus-or, ringing in the ears-is the type of disability that may be established on the basis of lay evidence as it is subjective in nature. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran’s statements as to the onset of his tinnitus to be competent and credible. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is established. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. 3. Petition to reopen a claim for service connection for bilateral knee disability The RO denied a claim for service connection for bilateral knee disability in April 1965. The RO noted inservice treatment for left knee sprain but found that there was no evidence of a chronic disability affecting either knee. The Veteran did not perfect an appeal to this decision. In December 2017, the Veteran filed a petition to reopen the claim for service connection for a bilateral knee disability. In the December 2017 rating action, the RO denied reopening the claim for service connection for bilateral knee disability. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. The evidence added to the file since the last final decision includes lay statements, as well as private and VA treatment records. In regard to his written statements, he has continued to argue that he has a bilateral knee disability attributable to his military service. This is the same allegation before the RO considered and denied this claim in April 1965. When initially considering and denying this claim in April 1965, there was recognition and acknowledgment of his personal belief that he has a bilateral knee disability and that it is a result of his military service. Reiterating this allegation is not new evidence. See Bostain v. West, 11 Vet. App. 124 (1998) Also, since that April 1965 decision, private and VA treatment records have been added to the file, but none are material to the claim in terms of showing a current chronic disability or evidence attributing a bilateral knee disability to his military service. The Board has considered the low bar for reopening prior denied claims outlined in Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). After a sympathetic review of this evidence added since the prior RO decision, the Board finds that it is cumulative and duplicative of the evidence previously of record, and therefore, cannot be the basis for reopening the claim. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his current bilateral hearing loss had its onset during military service. The Veteran testified that while stationed in Oregon, he was allowed to use his private weapons for hunting. They were also allowed use of the firing range. Also, while stationed in Japan he was exposed to jet engine noise. See Board hearing transcript pgs. 3-5. The Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. The Veteran is competent to report his hearing loss symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the matter should be remanded in order to obtain VA opinion. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, provide the Veteran’s claims file to appropriate physician with the necessary expertise for supplemental comments (addenda) concerning to determine the nature and etiology of the Veteran’s bilateral hearing loss. The examiner is asked to address the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss was incurred in or is otherwise related to his active military service? The rationale must not rely only on the audiograms of record, but must fully consider whether the disability developed after service due to acoustic trauma. An examination is only required if deemed necessary by the examiner. The examiner must provide a complete rationale for all proffered opinions. The examiner must discuss and consider the Veteran’s lay statements regarding acoustic trauma is service. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.