Citation Nr: 21073907 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-59 047 DATE: December 13, 2021 ORDER 1. The appeal to reopen the claim of service connection for a left ear hearing loss disability is denied. 2. Entitlement to service connection for a right ear hearing loss disability is denied. 3. Entitlement to service connection for a sleep disorder is denied. 4. Entitlement to service connection for an acquired psychiatric disorder is denied. 5. Entitlement to service connection for a disability manifested by dizziness is denied. 6. Entitlement to service connection for a disability manifested by weakness is denied. 7. Entitlement to service connection for a disability manifested by paresthesias is denied. 8. Entitlement to service connection for a headache disorder is denied. FINDINGS OF FACT 1. An unappealed July 2009 rating decision denied service connection for a left ear hearing loss on the basis that the evidence did not show that the Veteran's left ear hearing loss disability was due to his active-duty service; evidence submitted or received since the July 2009 rating decision does not show or support that the Veteran's left ear hearing loss disability was due to his active-duty service. 2. The preponderance of evidence is against a finding that the Veteran's current right ear hearing loss disability is etiologically related to his active-duty service. 3. The preponderance of evidence is against a finding that a sleep disorder, to include insomnia, or an acquired psychiatric disorder, to include anxiety disorder, depressive disorder, or posttraumatic stress disorder (PTSD), is etiologically related to the Veteran's active-duty service. 4. The Veteran is not shown to have a present disability manifested by dizziness, a disability manifested by weakness, a disability manifested by paresthesias, or a headache disorder. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for a left ear hearing loss disability is not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for a right ear hearing loss disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307. 3.309. 3. Service connection for a sleep disorder is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 4. Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 5. Service connection for a disability manifested by dizziness is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 6. Service connection for a disability manifested by weakness is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 7. Service connection for a disability manifested by paresthesias is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 8. Service connection for a headache disorder is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from August 1976 to November 1976, with additional periods of active duty for training (ACDUTRA) from June 11, 1977, to June 26, 1977, and June 10, 1978, to June 25, 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 Department of Veterans Affairs (VA) rating decision that declined the claim seeking service connection for left ear hearing loss and denied the service connection claims for right ear hearing loss, a disability manifested by dizziness, a disability manifested by weakness, a disability manifested by paresthesias, a headache disorder, a sleep disorder, and an acquired psychiatric disorder. In January 2019, the matters were remanded for additional development. Claim to Reopen: New and Material Evidence Generally, when a claim is disallowed and unappealed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing 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 a claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed July 2009 rating decision denied the Veteran's service connection claim for a left ear hearing loss disability on the basis that the evidence did not show that the Veteran's left ear hearing loss disability was due to his active-duty service. The evidence of record in July 2009 included the Veteran's service treatment records (STRs), VA treatment records, and a June 2009 VA examination with opinion. The Veteran's STRs are silent regarding left ear hearing loss. On March 1976 service entrance examination, audiometry pure tone thresholds for his left ear were: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 5 60 In medical history at the time of his entrance examination, the Veteran denied having any hearing loss. Upon his separation report of medical examination, clinician reported audiometry pure tone thresholds for his left ear as: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 5 10 Audiometry results showed his thresholds were either stable or improved between his entrance and separation physicals. Furthermore, in medical history at the time of his separation examination, he, once again, denied having any hearing loss. The Veteran's post-service medical records do not include any complaints of hearing loss for many years after his separation from active-duty service. In March 2009, the Veteran first reported diminished left ear hearing loss. While a July 2009 treatment record disclosed left ear haring loss, this record was bereft of audiometric findings. In June 2009, the Veteran reported for a VA audiological examination. Audiometry found that pure tone thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 LEFT 30 35 35 90 95 After review of the Veteran's claims file and interview and examination of the Veteran, the audiologist opined that the Veteran's left ear hearing loss disability was less likely than not due to his active-duty service. The examiner reported that the Veteran's hearing was normal at his service separation examination and that the Veteran denied hearing loss. Based on such evidence, the July 2009 rating decision denied service connection for a left ear hearing loss disability. In September 2010, the Veteran again filed a service connection claim for a left ear hearing loss disability, asserting his hearing loss was due to his active-duty service. As the claim was previously denied on the basis that the Veteran's left ear hearing loss disability was not due to his active-duty service, for evidence to be new and material in this matter, it would have to show that his left ear hearing loss disability was due to his active-duty service. Evidence received since July 2009 includes additional VA treatment records and two new VA examinations conducted in November 2012 (with a March 2013 addendum opinion) and July 2021. While the new VA treatment records show that the Veteran sought treatment for his hearing loss, the Veteran did not submit any evidence establishing that his left ear hearing loss disability was due to his active-duty service. Thus, such evidence is not relevant. He has not submitted or identified for VAto seek on his behalfany medical (opinion) evidence supporting that his left ear hearing loss disability is due to any aspect of his active-duty service. The Veteran was afforded VA examinations for hearing loss in November 2012. A previous Board decision found that the examination opinion was not adequate. As such, the Board directed development. Upon a July 2021 VA examination, audiometry continued to show a left ear hearing loss disability. After review of the Veteran's claims file and interview and examination of the Veteran, the audiologist opined that the Veteran's left ear hearing loss disability was less likely than not due to his active-duty service. This audiologist indicated that while the Veteran's entrance examination showed transient hearing loss, by the time of his separation report of medical examination, his hearing was within normal limits. The audiologist reported that there was no permanent threshold shift in the Veteran's hearing beyond test variability between his entrance and separation examinations, which was objective evidence of no permanent auditory damage on active duty from any noise exposure. As such, while the afore-noted evidence is new (in the sense that it was not previously considered), it does not raise a reasonable possibility that the claim of service connection for a left ear hearing loss disability may be substantiated Accordingly, the evidence added to the record since July 2009 does not pertain to the unestablished fact necessary to establish the claim; does not raise a reasonable possibility of substantiating the claim; and is not material. Even the low threshold standard for reopening in Shade has not been met, and the claim of service connection for a left ear hearing loss disability may not be reopened. Service Connection The Veteran most generally contends that the disabilities (articulated above) were incurred in, aggravated by, or otherwise attributable to, active-duty service. Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, to include sensorineural hearing loss, may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic disease listed in 38 C.F.R. § 3.309(a) service connection may be established by a showing continuity of symptomatology. See Walker v. Shinseki, 718 F. 3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 4.85, hearing loss disability must be established by specified audiometric studies. Under 38 C.F.R. § 3.385 hearing loss disability (for VA compensation purposes) is defined as existing when audiometry in the frequencies of 500, 1000, 2000, 3000 and 4000 hertz find a pure tone threshold of 40 decibels or higher at any of those frequencies; when the pure tone thresholds at 3 of the specified frequencies are higher than 25 decibels; or when speech discrimination by Maryland CNC list is less than 94 percent. Right Ear Hearing Loss Specifically, the Veteran has asserted that he had a right ear hearing loss disability related to his active-duty service. He reported that his left ear hearing loss was due to a tank firing shells; however, he did not elaborate upon the etiology of his right ear hearing loss. The Veteran's MOS was that of an armor crewman. It may reasonably be conceded, and is not in dispute, that during his active-duty service the Veteran was exposed some hazardous level noise during his tank training. It is also not in dispute that the Veteran now has a right ear hearing loss disability. Audiometry upon a June 2009 VA examination found that pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 50 65 Audiometry upon November 2012 and July 2021 VA examinations continued to show a right ear hearing loss disability, and what remains necessary to substantiate this claim is competent evidence that the Veteran's current right ear hearing loss disability is etiologically related to (was incurred in) active-duty service. The Veteran's STRs do not include complaints of, treatment for, or an assessment of, right ear hearing loss. Upon the Veteran's March 1976 entrance report of medical examination, audiometry pure tone thresholds for his right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 5 5 In medical history at the time of this report, the Veteran denied having any hearing loss. Upon the Veteran's separation report of medical examination, audiometry pure tone thresholds for his right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 5 In the associated separation report of medical history, he denied having any hearing loss. The Veteran's post-service medical records do not contain any complaints of hearing loss for many years after his separation from active-duty service. A right ear hearing loss disability first arose in the record in a June 2009 treatment note, although audiometry results are not recorded. The first audiometry results showing a right ear hearing loss disability was the June 2009 VA examination. As noted above, the Veteran reported VA examinations for hearing loss in June 2009 and November 2012. Upon a July 2021 VA examination for hearing loss, after reviewing the Veteran's claims file, interview, and evaluation, the audiologist noted that while the Veteran's entrance examination showed mild right ear hearing loss, his separation examination showed normal hearing, which was evidence that any hearing loss was transient and not permanent. The audiologist reported that there was no significant permanent shift in hearing thresholds beyond test variability from his entrance examination to his separation examination, which was objective evidence of no permanent auditory damage from the conceded noise exposure. This audiologist reported that there was no complaints or treatment for hearing loss in the Veteran's STRs or upon separation. The audiologist indicated that there may be a relationship between exposure to noise and auditory damage and hearing loss is well-established; however, auditory damage and hearing loss due to the noise exposure are not conceded based on a showing noise exposure alone. The audiologist explained that there must be a nexus of auditory damage to the noise in service to relate the Veteran's current hearing loss to his military noise exposure and not another etiology. The audiologist opined that the Veteran's right ear hearing loss disability was less likely than not related to the Veteran's active-duty service, to include any military noise exposure. As a right ear hearing loss disability did not manifest in service or in the first year following the Veteran's separation for service and was not clinically documented until the first VA examination in June 2009, service connection is not warranted, on either a direct or presumptive basis. See 38 C.F.R. §§ 3.303, 3.307. 3.309. Whether or not under such circumstances a current right ear hearing loss disability may be etiologically related to remote service and exposure to noise therein is a medical question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed Cir. 2007). The Veteran is a layperson and therefore his own opinion is not competent evidence in the matter. He has not submitted any medical or audiological (opinion or treatise) evidence in support of his claim. Regarding this dispositive question, the Board finds the July 2021 VA examination and opinion to be the most probative audiological/medical evidence. The audiologist's report reflects close review of the Veteran's claims file and includes a rationale that cites to accurate factual data (such as transient right ear hearing loss at entrance and normal audiometry on separation) and medical principles (that a pure tone threshold shift during service was not shown). Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the appeal in the matter must be denied. Sleep Disorder and Acquired Psychiatric Disorder Specifically, The Veteran asserts that he has a sleep disorder and an acquired psychiatric disorder that are due to his active-duty service. He reported that he was "jumped" by 5 people on base and beat up in May 1976. However, this alleged event occurred prior to the Veteran's active-duty service. Additionally, the Veteran's STRs do not show any complaints, injury, treatment, or diagnosis regarding any sleep or mental health complaints during his active-duty service. Upon his entrance report of medical examination, a clinician reported that he had normal physical and psychiatric evaluations and the Veteran denied having any trouble sleeping or any mental health symptoms. At his separation report of medical examination, a clinician noted the same evaluations. While the Veteran indicated that he had frequent trouble sleeping and depression on a medical questionnaire, this questionnaire does not bear the signature of a medical officer and it is not dated. Furthermore, the Veteran reported that he was "in good health." Despite the Veteran's reports, his STRs do not show any complaints, treatment, or diagnosis of a sleep disorder or a mental health disorder during his active-duty service. The Veteran's post-service medical records show that in early March 2009, he denied having any sleep abnormalities, anxiety, or depression. Later, in March 2009, he reported that he was involved in a motor vehicle accident (MVA) in August 2008 and sustained a head injury. At this time, a clinician diagnosed anxiety and depression. In April 2009, the Veteran denied having any sleep abnormalities, anxiety, or depression. He reported that he had a friend who died playing Russian roulette 5 years previously (approximately in 2004). He also reported he was struck in the head during a fight 10 years previously (approximately in 1999). In June 2009, he was diagnosed with anxiety, and the clinician noted that non-military related PTSD needed to be ruled out. In July 2007, the Veteran had a positive PTSD screen. In January 2010 and November 2018, he had negative depression screens. In November 2018, he was diagnosed with insomnia, anxiety, and depression. He denied having sleep apnea in December 2019. He denied having any sleep apnea, anxiety, or depression in November 2020. Accordingly, the claims file does not show that the Veteran was diagnosed with a sleep disorder or a mental health disorder during his active-duty service or that the Veteran's insomnia, anxiety, and/or depression are due to his active-duty service. The Veteran has not submitted any medical evidence which supports that any sleep disorder or mental health disorder are, or may be, etiologically related to his active-duty service, and the record does not include any such evidence. While the Veteran reported having frequent trouble sleeping and depression at his separation report of medical examination, his evaluations were normal. Furthermore, but for his lay reports at separation, his STRs do not show any complaints or treatment for any sleep disorder during his active-duty service. The first diagnosis of mental health symptoms only surfaced in March 2009, when the Veteran reported various life stressors such as the MVA, a fight, and a friend's death. The first notation of any sleep complaints dates from November 2018 with a diagnosis of insomnia. The Veteran's unsupported assertions that he has a sleep disorder and an acquired psychiatric disorder that are due to his active-duty service do not constitute competent medical evidence. The Veteran is a layperson, and does not cite to supporting clinical data, medical principles, or treatise evidence. Jandreau, 492 F. 3d 1372. The Board has considered whether a VA examination or opinion is necessary and finds that such is not the case. There is no evidence of a related disease or injury in service, and therefore no possibility that an opinion could establish a nexus between a current sleep disorder or acquired psychiatric disorder and a disease or injury in service. Because it is not shown that there was a related disease or injury in service or that a current sleep disorder or acquired psychiatric disorder may be related to a disease or injury in service, the preponderance of the evidence is against the claims. Accordingly, the appeal in the matters must be denied. Disability Manifested by Dizziness, Disability Manifested by Weakness, Disability Manifested by Paresthesias, and Headache Disorder Specifically, the Veteran has asserted that he has a disability manifested by dizziness, a disability manifested by weakness, a disability manifested by paresthesias, and a headache disorder due to his active-duty service. The Veteran's STRs do not show complaints, treatment, or diagnosis for any dizziness, weakness, paresthesias, or headaches during active-duty service. As noted above. A clinician reported normal physical findings upon the Veteran's separation report of medical examination. While the Veteran indicated that he had dizziness and frequent headaches on a medical questionnaire, a competent clinician neither signed nor dated this document. Furthermore, the Veteran reported that he was "in good health." The Veteran's post-service treatment records show that in March 2009, he denied having any dizziness, weakness, or paresthesias. In April 2009, he denied having headaches and continued to deny having any weakness or paresthesias, but he reported having rare dizzy spells. In November 2019, he denied having any headaches, and on examination, he had no motor or sensory deficits. In December 2019, he denied having any neurological symptoms. In October 2020, he denied having any headaches. As such, the claims file does not show any diagnosis for a disability manifested by dizziness, a disability manifested by weakness, a disability manifested by paresthesias, or a headache disorder. The Veteran has not submitted any medical evidence supporting that he has a disability manifested by dizziness, a disability manifested by weakness, a disability manifested by paresthesias, or a headache disorder. His medical records do not show diagnoses of any such disabilities. The Veteran is a layperson and does not profess to have any medical expertise. As such, the Veteran's lay assertions do not constitute competent medical evidence. See Jandreau, 492 F.3d 1372. A threshold requirement for substantiating a claim of service connection is that there must be competent evidence of the present disability for which service connection is sought. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F. 3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As it is not shown by competent (medical) evidence that at any time during the pendency of the instant claims the Veteran was found to have a disability manifested by dizziness, a disability manifested by weakness, a disability manifested by paresthesias, or a headache disorder, that threshold requirement is not met. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeals in these matters must be denied. B. J. KOMINS Acting 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.