Citation Nr: 21070627 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-34 243 DATE: November 24, 2021 ORDER New and material evidence having not been received, the application to reopen the previously denied claim of service connection for chronic chin pain is denied. Service connection for hearing loss is denied. Service connection for tinnitus is granted. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and dysthymic disorder, is remanded. FINDINGS OF FACT 1. The Veteran failed to perfect an appeal of an April 2016 rating decision that denied service connection for chronic chin pain (from tank accident) because he did not file a timely VA Form 9, substantive appeal to the Board. 2. Evidence submitted since the August 2016 rating decision does not related to an unestablished fact necessary to substantiate the claim of service connection for chronic chin pain. 3. The preponderance of the evidence shows that the Veteran does not have a current diagnosis of bilateral hearing loss that meets the requirement of a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385. 4. The Veteran's tinnitus cannot be satisfactorily disassociated from his in-service noise exposure. CONCLUSIONS OF LAW 1. . The April 2016 rating decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the previously denied claim for chronic chin pain. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1984 to January 1988. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a November 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied reopening of the claim for service connection for chronic chin pain because no new and material evidence has been received, denied service connection for hearing loss, and confirmed and continued the August 2018 denials of service connection for PTSD with anxiety and dysthymic disorder and tinnitus. The Veteran's Notice of Disagreement (NOD) was received in December 2018. The Statement of the Case was issued in September 2019, and the Veteran's VA Form 9, substantive appeal to the Board was received in November 2019. In July 2021, the Veteran and his representative appeared before the undersigned Veterans' Law Judge (VLJ) for a Board virtual hearing. The transcript is of record. The claim of service connection for PTSD with anxiety and dysthymic disorder is construed broadly to include any acquired psychiatric disability that may be reasonably be encompassed by the description of the claim, reported symptoms, diagnosis, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Veteran's claim is re-characterized as listed above, and includes all diagnosed psychiatric disorders, including PTSD, anxiety disorder, and dysthymic disorder. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for chronic chin pain. In March 2016, the Veteran filed his original claim for service connection for chronic chin pain from a tank accident. The claim was denied in an April 2016 rating decision. The basis for the denial was that chronic chin pain neither occurred in, nor was caused by service. It was noted that the Veteran's service treatment records (STRs) did not contain complaints, treatments, or diagnosis for chronic chin pain, and there was no evidence of an event, disease, or injury in service. The Veteran was notified of the decision in April 2016. He submitted an NOD in May 2016. The Statement of the Case was issued in May 2017. Then, the Veteran did not submit a VA Form 9 and therefore did not perfect his appeal to the Board. As such, the April 2016 rating decision became final. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. Then, in May 2018, the Veteran submitted a claim for service connection for chin condition. His claim was denied in the August 2018 rating decision, which determined that no new and material evidence has been submitted to warrant reopening of the claim. The Veteran requested reconsideration of the decision in October 2018, and the denied reopening of the claim because no new and material evidence has been submitted. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makes. Material evidence is 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 cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of substantiating the claim. 38C.F.R. §3.156 (a). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. The evidence of record at the time of the April 2016 denial includes the Veteran's STRs with complete dental records, his DD 214, and his March 2016 claim statement. The evidence of record since the April 2016 denial includes the Veteran's VA treatment records dated after April 2016, his May 2016 statement, his November 2019 statement, his July 2021 Board testimony, and his October 2021 Brief. After a review of the entire record, with particular attention to the additional evidence received since the final rating decision in April 2016, new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for chronic chin pain. The Veteran's STRs, which were associated with the file prior to the final denial, contain an August 1987 emergency room notation with the chief complaint of lip laceration. It was noted that the Veteran bit into his lower lip during training and it went through and through. It was noted that his visit was non-urgent and he was referred to the dental clinic. A treatment note dated the same day from the Ft. Hood dental clinic indicates that the Veteran had a laceration on his lower lip of 1 cm in length externally and 2 cm length of internal surface of the lip, right of midline, with no bleeding. It was noted that the Veteran received sutures which were removed within one week. The Veteran's May 2016 statement indicates that his STRs contain medical treatment for his chin which is periodically producing puss as well as hardening which produces pain. The Veteran's VA treatment records contain a July 2018 treatment note indicating that the Veteran reported intermittent drainage of the bottom lip/chin region after shaving, with no recent drainage or open wounds. He was not noted to have any scars. The Veteran's November 2019 statement indicates that he experienced an accident in service where he was physically injured and had to get stiches to his lower chin area to close up the hole he had in his chin. The Veteran indicated that he was taken to the emergency room and also hurt his left knee in the accident. The Veteran indicated that the accident left him with sticks in this mouth. During the July 2021 hearing, the Veteran testified that during training, he was driving, hit a ditch, and his chin hit the turret. The Veteran further testified that he punctured all the way through from the outside to the inside of his gum. The Veteran testified that he was rushed to the emergency room where he received stitches. The Veteran testified that the day of the accident was April 7, 1987, and that steel went all the way through is chin, inside his gum. In this case, the evidence submitted prior to the last denial shows that on the date of the alleged in-service injury, the Veteran was treated for a non-emergency lip laceration, which happened when he bit himself during training. The Veteran's STRs show that the laceration was greater on the inside than the outside (2 cm in length on the inside and 1 cm in length on the outside). These records do not indicate that the Veteran was involved in an accident or hurt his knee. Thus, the evidence did not show an in-service event or injury to which a nexus can be established. Following the April 2016 denial, the Veteran re-submitted the April 7, 1987 treatment note and testified that this was evidence of an in-service accident during which a piece of metal punctured his chin, resulting in current chronic chin pain and build up. However, the evidence submitted by the Veteran contradicts his assertions and does not provide evidence of an in-service injury to his chin. As previously noted, the Veteran asserted that he was involved in an accident driving, when he hit a ditch and his chin hit a metal piece, causing the piece to go through his chin. The Veteran's records contradict his claims, as they show that the Veteran bit his lip from inside out, and did not have a hole punctured through by a piece of metal. The Ft. Hood dental clinic record indicates that the Veteran's lip laceration was greater on the outside, than inside, thus contradicting the Veteran's assertion that a piece of petal punctured his chin from the outside in. Moreover, the records do not state that the Veteran was involved in any sort of an accident, injured his knee, or required emergency care. The dental clinic treatment record indicated that there was no bleeding. Thus, despite the Veteran's claims, the evidence still shows that the Veteran did not suffer an in-service injury which caused any current disability. As such, the evidence submitted is not new or material. In other words, the Veteran contends that he presented evidence of an in-service injury which caused his current chin pain. However, the evidence presented was already of record prior to the last final denial, and instead contradicts the Veteran's claims. The Veteran also alleged that he has current chronic chin pain and puss build up as a result of the in-service puncture. However, his VA treatments show a report of build up after shaving, with no findings of a scar or a wound. Thus, Veteran's VA treatment records further contradict his assertions of a current disability caused by an in-service metal piece puncture through the chin. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 492 F. 3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). However, as indicated above, in the current appeal, the Veteran's STRs contradict his assertions. As such, his contentions made during this appeal are patently incredible and do not raise a reasonable possibility of substantiating the claim and may not be deemed to be both new and material. Shade, supra. Notably, under Justus, newly submitted evidence is presumed credible; however, it is not blindly accepted as true if it is patently incredible. Such is the case here. In summary, the additional evidence received since the final April 2016 rating decision does not tend to establish any point not previously demonstrated and it is therefore cumulative. See 38. C.F.R. § 3.156. Moreover the presumption of credibility is rebutted by statements that are internally inconsistent, and therefore patently not credible. The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for chronic chin pain is not reopened. 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, 5107; 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, to include sensorineural hearing loss and tinnitus as other organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) 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. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must be preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for hearing loss. At the July 2021 Board hearing, the Veteran testified that he was a driver in service, and that he also was around loud weapons. He testified that he did not have hearing protection. In this case, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of a hearing loss disability and has not had one at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). An October 2018 VA audiology examination report reveals that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of the required frequencies and no frequency had a puretone threshold of at least 40dB. Speech recognition scores in both ears using the Maryland CNC test were 100 percent. The VA examiner noted that the Veteran had normal hearing in both ears. Therefore, the medical evidence of record reflects that the Veteran did not have a current diagnosis of a bilateral hearing loss disability under VA regulations at any time during the appeal period or recent to the filing of the claim. The evidence supporting bilateral hearing loss disability consists of the lay statements from the Veteran. Specifically, the Veteran contends that he has hearing loss due to active service. Although lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's statements therefore cannot establish a current hearing loss disability for purposes of VA compensation benefits. The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In the case of hearing loss, the regulations explicitly state the auditory decibel threshold required. Congress specifically limits entitlement for service-connected disability to cases where an in-service disease or injury has resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of evidence of a present disability due to disease or injury, there can be no valid claim. Id. Accordingly, without evidence of a current bilateral hearing loss disability, entitlement to service connection for bilateral hearing loss is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The benefit of the doubt doctrine is not applicable in this regard, because the preponderance of the evidence is against the claim for service connection. 3. Entitlement to service connection for tinnitus. The Veteran contends that he has tinnitus related to the above-described noise exposure. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). During the October 2018 VA examination, the Veteran reported that he had tinnitus. Thus, the Veteran has met the current disability requirement. Additionally, the Veteran reported that he was subjected to noise exposure during his active military service. The Veteran's DD 214 lists his military occupational specialty as heavy antiarmor weapons infantryman. Thus, the Veteran's DD 214 confirms that the nature of the Veteran's service is consistent with his contentions regarding noise exposure he experienced in service. His statements have been found competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, the Veteran's military occupation is associated with high risk of noise exposure. Therefore, the Veteran has met the in-service injury or event requirement. Hence, the dispositive issue is whether the Veteran's tinnitus is related to his in-service noise exposure. With respect to a nexus, the October 2018 VA examiner concluded that it is at least as likely as not that the Veteran's tinnitus is caused by, or a result of his military noise exposure. For rationale, the VA examiner noted that the Veteran's DD 214 lists his military occupation as infantry, which has a high probability of noise exposure. The October 2018 VA examiner reviewed the Veteran's records, his contentions, and provided a full rationale for all conclusions reached. Therefore, the October 2018 VA examination report is afforded probative value. Thus, the evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to his in-service noise exposure. The Veteran's credible and competent statement are assigned probative value because tinnitus is capable of lay observation and because they are supported by the record. Moreover, the October 2018 VA examination report contains a positive nexus opinion. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). REASONS FOR REMAND 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and dysthymic disorder. In a June 2018 statement, the Veteran indicated that during one incident in service, he was driving a tow truck vehicle while it was very dark, and was instructed to go forward what he thought was a road. The Veteran further indicated that it was not a road, that the vehicle dropped, and he thought that he rolled off a mountain cliff. He also indicated that during a second in-service incident, he was driving a tow track vehicle and had a really bad accident, was rushed to the emergency room, and had to have stiches on his chin, and had a swollen left knee. The Veteran asserted that this treatment is documented in his service treatment records (STRs). The Veteran also indicated that he has trouble sleeping, ringing in his ears, and bad headaches from trying to control his thoughts and actions. At the July 2021 Board hearing, the Veteran testified that his treating psychiatrist confirmed that is PTSD is related to the in-service incidents described by the Veteran. The Veteran's STRs do not contain any complaints or treatments for psychiatric disabilities. They also do not contain any notations with respect to the first incident described by the Veteran. With respect to the second incident, as noted above, the Veteran's STRs contain an April 1987 emergency care and treatment note. The note indicated that the Veteran bit into his lip through and through during training and had a lower lip puncture that required sutures. The visit was listed as non-urgent and his chief complaint was listed as lip laceration. An April 1987 Ft. Hood dental clinic treatment note indicated that the Veteran had a lip laceration of 1 cm length external, and 2 cm length internal surface of lip right of midline. There was no bleeding noted, the Veteran received sutures which were to be removed in one week. The Veteran's VA treatment records contain a June 2018 positive screen for PTSD, at which point the Veteran was referred to VA mental health services. An August 2018 VA mental health treatment note indicates that the Veteran related his psychiatric symptoms to two incidents in the military. He was given an initial DSM IV diagnosis of PTSD, dysthymic disorder, and anxiety disorder. However, the Veteran was not afforded a VA examination in this case. The VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. In this case, the Veteran claims that his acquired psychiatric disabilities are related to in-service incidents. His VA treatment records contain DSM-4 diagnosis of PTSD, anxiety disorder, and dysthymic disorder. The records also show that the Veteran related his psychiatric disabilities to his service during treatment. As such, a VA examination with a complete nexus opinion is warranted. Id. Accordingly, the matter is remanded for further development and adjudication. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records; and, after obtaining all proper authorizations, obtain any outstanding private treatment records identified as pertinent to the issue on appeal, and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of the Veteran's acquired psychiatric disabilities. The electronic claims file, including a copy of this remand must be made available to the examiner for review, and the examiner must state that the records were reviewed. The examiner must administer any necessary psychological testing of the Veteran to determine whether he has a current diagnosis of PTSD, anxiety disorder, and dysthymic disorder pursuant to DSM-5. The VA examiner is requested to opine as to: 3. In the event that the Veteran has a current diagnosis of PTSD pursuant to the DSM-5 criteria, the examiner should opine as to whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's PTSD is related to the Veteran's claimed in-service stressors. 4. For any DSM-5 diagnosed psychiatric disabilities other than PTSD, the VA examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or higher probability) that any acquired psychiatric disorder other than PTSD has its onset in service, or is otherwise causally related to an in-service injury, event, or disease. 5. A full rationale for all opinions expressed must be provided. (Continued on the next page) In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.