Citation Nr: 21068471 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-62 095 DATE: November 10, 2021 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a back disorder is granted and the claim is reopened. New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for tinnitus is granted and the claim is reopened. New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for a right ankle disorder is denied and the claim is not reopened. New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for a left ankle disorder is denied and the claim is not reopened. New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss is denied and the claim is not reopened. New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for a stomach disorder, characterized as stomach problems, is denied and the claim is not reopened. New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for facial bumps is denied and the claim is not reopened. Service connection for a back disorder is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. In an October 2007 rating decision, the Veteran's claims of entitlement to service connection for a back disorder, tinnitus, a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps were denied on the ground that he did not have a current diagnosis of those disorders. 2. With respect to the Veteran's claims seeking service connection for a back disorder and tinnitus, the evidence added to the record since the October 2007 rating decision relates to unestablished facts that are necessary to substantiate those claims. 3. With respect to the claims seeking service connection for a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps, the evidence added to the record since the October 2007 rating decision does not include information that was not previously considered and that relates to an unestablished fact necessary to substantiate those claims. 4. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his back disorder and tinnitus are etiologically related to active duty service. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied the Veteran's claims of entitlement ot service connection for a back disorder, tinnitus, a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Because the evidence received after the October 2007 rating decision is new and material, the requirements to reopen the Veteran's claim of entitlement to service connection for a back disorder and tinnitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. Because the evidence received after the October 2007 rating decision is not new and material, the requirements to reopen the claims of entitlement to service connection for a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 4. The criteria for service connection for a back disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to September 1998. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence The Veteran contends that his claims seeking service connection for a back disorder, tinnitus, a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps should be reopened because he submitted new and material evidence in support of those claims. 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 regulations, "new" evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). "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. Id. 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). 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). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claims seeking service connection for a back disorder, tinnitus, a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps were denied in an October 2007 rating decision. A review of that rating decision reveals that at the time, VA declined to grant service connection for a back disorder, tinnitus, a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps because he lacked a current diagnosis of those disorders. The Veteran did not appeal that October 2007 rating decision within one year, nor did he submit any new and material evidence within a year of receiving it. Therefore, the October 2007 rating decision represents the last final denial of his claims seeking service connection for a back disorder, tinnitus, a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back disorder 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus After a review of the evidence submitted since the October 2007 rating decision became final, the Board determines that the Veteran's claims of entitlement to service connection for a back disorder and tinnitus should be reopened. With respect to a back disorder, the record now includes new medical evidence, including a March 2014 treatment record, which reflects that he has a currently diagnosed back disorder. With respect to tinnitus, the record now includes the Veteran's testimony at the July 2021 Board hearing that he currently has tinnitus, shown by ringing in his ears, which he is competent to diagnose. Not only is this evidence "new" because it was not of record prior to the last final denial of the claims, it is also "material" because it relates to unestablished facts necessary to support the claims. Therefore, his claims seeking service connection for a back disorder and tinnitus should be reopened. Shade, 24 Vet. App. at 118-21; see also 38 C.F.R. § 3.156(a). 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right ankle disorder 4. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left ankle disorder 5. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss 6. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a stomach disorder, characterized as stomach problems 7. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for facial bumps After a review of the evidence submitted since the July 2013 rating decision, the Board concludes that new and material evidence has not been added to the record to reopen the Veteran's claims of service connection for sinusitis, nasal polyps, bronchitis, muscle and joint pain, erectile dysfunction, a left knee condition, a right knee condition, a back disorder, a bilateral wrist condition, and a bilateral elbow condition. Since the last final denial of the Veteran's claims seeking service connection for a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps, private treatment records, buddy statements, written statements by the Veteran, and a transcript of his testimony from the July 2021 Board hearing have been added to the record. However, after a thorough review of this evidence, the Board finds that although this evidence is new, it is not material because it does not relate to whether he has a current diagnosis of these disorders. Indeed, none of the clinical evidence shows that he has a current diagnosis of a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, or facial bumps. The Board acknowledges that at the July 2021 Board hearing, the Veteran testified that he currently has a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps, and that he treats his ankle disorders by purchasing high quality boots and using inserts, his stomach problems with over the counter drugs, and his facial bumps by not shaving on a daily basis to avoid the pain associate with shaving. However, he is not competent to provide a diagnosis of these disorders. Whether he has a current diagnosis of a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps is medically complex and requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, to the extent that the Veteran is competent to report symptoms such as pain, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a "disability" under 38 U.S.C. § 1110. However, in this case, the medical evidence is not sufficient to demonstrate a disability for VA disability compensation purposes. In this case, no treatment records reflect that the Veteran has specifically reported that he has experienced right ankle and left ankle pain or sought treatment for such pain. Accordingly, there is not sufficient evidence of functional limitations due to pain that cause impairment to his earning capacity. Therefore, because this evidence could not reasonably substantiate his claims by showing that he has current diagnoses of a right ankle disorder, a left ankle disorder, bilateral hearing loss, stomach problems, and facial bumps, the Board concludes that reopening his claims seeking service connection for these disorders is not warranted. 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. 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 may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, 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). 8. Entitlement to service connection for a back disorder 9. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for his back disorder and tinnitus. With respect to his back disorder, he contends that service connection is warranted because his current back disorder is related to an injury that he sustained during his active duty service when he was moving ammunition. With respect to tinnitus, he contends that service connection is warranted because he was frequently exposed to loud noise as a cannon crewmember. After a review of the evidence of record, and after resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for his back disorder and tinnitus. In this case, the evidence is at least in equipoise that the Veteran's back disorder and tinnitus began during service or are otherwise etiologically related to his active duty service. With respect to his back disorder, the Board notes that his service treatment records, including March 1995, July 1997, and March 1998 service treatment records, reflect that he sustained back injuries during his active duty service and sought treatment for low back pain. With respect to tinnitus, the Board notes that his service treatment records, including a May 1998 service treatment record, reflect that he reported symptoms of tinnitus, and was diagnosed with mild tinnitus. Given that he sought treatment for a back disorder and tinnitus during his active duty service, was diagnosed with mild tinnitus during his active duty service, provided competent and credible testimony at the July 2021 Board hearing that he has experienced continuous symptoms of these disorders, and that January 2014 buddy statements corroborate that he experienced back pain and sustained back injuries during his active duty service, the evidence is at least in equipoise that his current back disorder and tinnitus began during or are otherwise etiologically related to his active duty service. By virtue of the foregoing, the Board concludes that the evidence is at least in equipoise that the Veteran's back disorder and tinnitus began during or are otherwise etiologically related to his active duty service. Accordingly, the Board concludes that service connection for his back disorder and tinnitus is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel