Citation Nr: 21073404 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-52 048 DATE: December 8, 2021 ORDER Since there is not new and material evidence, the petition to reopen a previously denied claims for service connection for depression and anxiety is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The additional evidence submitted or otherwise obtained since prior, final and binding rating decisions previously considering and denying the claims for service connection for depression and anxiety is cumulative or redundant of evidence already of record and considered in those prior decisions or does not relate to an unestablished fact necessary to substantiate these claims or raise a reasonable possibility of substantiating them. 2. The Veteran is not shown to have or have had during the pendency of this appeal sufficient hearing loss in either ear to be considered a "ratable" disability for VA compensation purposes. 3. The preponderance of the evidence also is against finding that the Veteran's tinnitus began during his active military service, within a year of his discharge, or is otherwise related or attributable to his service. CONCLUSIONS OF LAW 1. Since there is not new and material evidence, the petition to reopen the previously denied claims for service connection for depression and anxiety is denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.1103 (2018). 2. The criteria are not met for entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria are not met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1991 to March 1992 and from October 1994 to October 1997. This appeal to the Board of Veterans' Appeals (Board) is from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed, unless inherently incredible or the assertion is beyond the competence of the person making it. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). New and material evidence has not been received to reopen the previously denied claim for service connection for depression and anxiety; thus, this petition is denied. Historically, unappealed rating decisions in October 2002 and April 2010 denied the Veteran's claims for service connection for depression and anxiety based on the lack of a correlation ("nexus") between these claimed disabilities and his service. At the time of those prior denials, the evidence of record included the Veteran's service treatment records (STRs), VA treatment records, and the report of a VA examination noting a diagnosis of and treatment for depression and anxiety but not also the required attribution of these mental disorders to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.") The Veteran was duly notified of those earlier denials of his claims and of his appellate rights, but he did not perfect an appeal of those prior decisions. He also did not submit new and material evidence within one year of receiving notification of those prior denials of his claims; thus, those earlier rating decisions became final and binding determinations based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2018). In June 2017, the Veteran filed a petition to reopen these claims. In the September 2017 rating decision precipitating this appeal, the RO denied the petition to reopen these claims because there was not the required new and material evidence since the prior denials of these claims. The additional evidence received since the October 2002 and April 2010 rating decisions previously considering and denying these claims includes VA treatment records. This evidence is new since not of record at the time of the prior, final and binding rating decisions denying these claims and, therefore, was not previously considered, but it is not also material to the claims since it does not tend to relate to an unestablished fact needed to substantiate these claims and does not raise a reasonable possibility of substantiating them including especially in terms of providing the required attribution of these mental disorders to the Veteran's military service. Consequently, the Board concludes that the evidence submitted since the prior, final and binding rating decisions denying these claims is not new and material and, thus, does not serve as grounds for reopening these claims. And inasmuch as the Veteran has not fulfilled this threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 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 relevant disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss (SNHL) and tinnitus, since organic diseases of the nervous system, may be service connected on a presumptive basis if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for bilateral hearing loss For the purpose of applying the laws administered by VA, impaired hearing is considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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 Veteran contends that he has bilateral hearing loss from repeated exposure to loud noise and consequent injury in service (acoustic trauma). His DD Form 214 reflects that his military occupational specialty (MOS) was carpentry and masonry. Given his occupation in service, it reasonably may be conceded that he sustained noise trauma in service, as alleged. It still must be shown, however, that he has bilateral hearing loss owing to that accepted noise exposure during his military service. And fundamental to this determination is the Veteran first establishing that he has a current disability, that is, sufficient hearing loss according to the threshold minimum requirements of § 3.385 to be considered a ratable disability by VA standards. Unfortunately, the Board concludes that he does not have a bilateral hearing loss disability and has not had one at any time during the pendency of this claim or recent to the filing of this claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). On August 2017 VA examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 25 30 LEFT 10 15 15 20 30 Speech discrimination by Maryland CNC testing was 100 percent in the right and left ear. The record on appeal, therefore, does not show that at any time during the pendency of this claim the Veteran has been found to have a ratable bilateral hearing loss disability (as defined in 38 C.F.R. § 3.385). As already explained, it is possible to have hearing loss, but insufficient hearing loss to be considered an actual "ratable" disability according to the threshold minimum requirements of § 3.385, and this is the situation here. Further, there is no assertion by the Veteran, or medical records in the claims file, indicating a worsening of his hearing acuity to the point that he would now have a ratable hearing loss disability according to this VA regulation (38 C.F.R. § 3.385). As a result, the Board regrettably must deny this claim for service connection for bilateral hearing loss since, for all intents and purposes, there is no present disability (again, meaning actually "ratable" disability) to, in turn, relate or attribute to his service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). He hereby is advised that a future finding of an actual ratable bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 may present a basis for reopening this claim and attributing it to his service. But in the meantime, no further consideration of this claim is warranted. 2. Entitlement to service connection for tinnitus The Veteran also alleges that he has tinnitus because of his service and that it began during his service because of the same cause (noise trauma). Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses); see also Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). The Board concedes that the Veteran has a present diagnosis of tinnitus; however, the most persuasive evidence does not indicate this disease incepted during his service, within a year of his discharge, or that it is otherwise the result of his service including the acoustic trauma alleged. The record on appeal does not support the Veteran's contention that his tinnitus incepted during his service. His service treatment records (STRs) are grossly unremarkable for complaints, treatment, or any indications of ringing in his ears including owing to acoustic trauma. And while this, alone, is not determinative of whether he had tinnitus while in service, it is evidence against the notion that he did. In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases, as here, where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where, as here, the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence such as that proffered by the Veteran is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings to rely on this negative inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. So, it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, supra. The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Here, there is no suggestion the Veteran's STRs are incomplete, certainly in relevant part, and he did not serve in combat. A finding that the Veteran engaged in combat with the enemy requires that he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality and does not apply to Veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). See also 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Moreover, there is no reason not to expect the Veteran to at least have complained of tinnitus during his service, if he was experiencing it as he is now alleging. There equally is no suggestion of tinnitus within a year of the Veteran's discharge from service to, in turn, warrant presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). As well, there is no credible indication of continuity of symptoms since his service under 38 C.F.R. § 3.303(b) as an alternative means of etiologically linking this disease to his service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Significantly, in this regard, on August 2017 VA examination, the Veteran reported onset of his tinnitus "about a year go", therefore, in 2016 or thereabouts, meaning well after his separation from service. And, in any event, since his tinnitus was not first "noted" during his service, even under the holding in Walker he cannot show continuity of symptomatology since his service to, in turn, etiologically link this disease to his service. See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Accordingly, service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.