Citation Nr: 21006404 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-42 585 DATE: February 4, 2021 ORDER The appeal to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A February 2017 rating decision denied entitlement to service connection for bilateral hearing loss; no appeal was taken from that decision, and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the February 2017 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. 3. The preponderance of the evidence of record does not support a finding that it is at least as likely as not that the Veteran’s tinnitus is etiologically related to his period of active military service. CONCLUSIONS OF LAW 1. The February 2017 rating decision that denied the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having not been received, the criteria to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss, have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in June 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the July 2018 rating decision included denial of the Veteran’s claim to service connection for tinnitus. The Veteran submitted an August 2018 Notice of Disagreement (NOD) indicating appeal of the issue of entitlement to service connection for tinnitus that the RO also denied in an August 2018 Statement of the Case (SOC). The Veteran’s August 2018 VA Form 9 indicated appeal of all of the issues addressed in the August 2018 SOC. As such, the Board has jurisdiction over the issue of entitlement to service connection for tinnitus and the issue is discussed below. The Veteran presented testimony at a Board video conference hearing before a Veterans Law Judge (VLJ) at a July 2020 hearing. A copy of the transcript has been associated with the claims file. The Board notes the Veteran did not provide testimony regarding his claim to entitlement to service connection for tinnitus. In September 2020, the Veteran withdrew his hearing request regarding the issue of entitlement to service connection for tinnitus. Therefore, the Veteran’s hearing request is deemed withdrawn, and the Board will proceed with adjudication of the issue of entitlement to service connection for tinnitus. See 38 C.F.R. § 20.704(e). Additionally, after the VLJ who held the July 2020 hearing (on the issue of whether new and material evidence had been received to reopen a claim for service connection for hearing loss) retired from the Board, the Veteran was offered the opportunity to appear at another hearing before a different VLJ and provided 30 days to respond. See November 2020 Board letter. To date, there has been no response to the November 2020 Board letter, no other request for a hearing has been received, and the 30-day period to respond has expired. As such, the Board may proceed with adjudicating the Veteran’s claims. The Board further notes that after the RO issued the August 2018 SOC, additional evidence was associated with the claims file. Specifically, the Veteran submitted a November 2019 private audiology examination in July 2020 and additional lay statements, including at the July 2020 Board hearing. Under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of RO review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance. The Veteran’s substantive appeal was received after February 2, 2013, in August 2018. Therefore, a waiver of RO review is not required, and the Board may consider the additional lay statements and private medical examination in the first instance. 38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1304(c). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Decisions of the Board are final on the date it is stamped. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In a February 2017 rating decision, the RO denied the Veteran’s claim to entitlement to service connection for bilateral hearing loss because the evidence of record did not demonstrate an in-service injury, event, or disease, nor a nexus between his current bilateral hearing loss and active service. The Veteran did not file a NOD of the February 2017 rating decision, and no new and material evidence was received within a year of issuance of the February 2017 rating decision. See 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Therefore, the February 2017 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2018, the RO denied reopening the Veteran’s claim to entitlement to service connection for bilateral hearing loss. The Board also finds that no new and material evidence was associated with the claims file since the February 2017 rating decision and notification. In that regard, the new evidence associated with the claims since the February 2017 rating decision includes additional VA treatment records received in July 2018, a November 2019 private audiology examination received in July 2020, and additional lay statements, including at a July 2020 hearing before the Board. The additional VA treatment records associated with the claims file are new as they were not previously associated with the claims file; however, they are not material as they only continue to confirm the Veteran’s diagnosis and treatment for bilateral hearing loss. Additionally, the VA treatment records do not demonstrate a nexus between the Veteran’s bilateral hearing loss and his military service, or that an in-service injury, event, or disease occurred. In July 2020, the Veteran provided testimony at a Board video conference hearing. The Veteran testified that he had right ear problems prior to service and experienced right ear infections after service until surgery in 1974. See July 2020 hearing transcript. Regarding his left ear, the Veteran testified that he had no problems with his left ear prior to service; had a sore throat and cold in service with runny discharge from the left ear; and did not notice hearing loss in the left ear during hearing loss. Id. The Veteran further testified that he was not exposed to loud noises in service. Id. In a September 2020 statement, the Veteran asserted that he initially found physically fit for service at enlistment, and receives hearing devices and medical treatment through the VA. See September 2020 Correspondence. The Veteran’s lay statements are not material as they are cumulative and redundant, and do not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for bilateral hearing loss. See 38 C.F.R. § 3.156(a). Specifically, the Veteran’s service treatment records demonstrate the Veteran was treated for a sore throat in June 1957. Additionally, the Veteran’s service treatment records include a June 1957 medical board report that found the Veteran had a perforation of the right tympanic membrane; that he experienced right ear symptoms since the age of 5; the left ear was normal; x-rays revealed poor pneumatization and marked increase in periantral sclerosis bilaterally; and the Veteran’s disability was not considered the proximate result of performance of active duty. Therefore, the Veteran’s lay statements are not material as they do not demonstrate an in-service injury, event, or disease not previously considered by the RO, and do not demonstrate a link between the Veteran’s current bilateral hearing loss and active service. See 38 C.F.R. § 3.156(a). As noted, the Veteran provided a November 2019 private audiology examination in July 2020. The November 2019 private audiology examination is new as it was not previously associated with the claims file. However, the November 2019 private audiology examination does not demonstrate an in-service injury, event, or disease, nor a link between the Veteran’s current bilateral hearing loss and active service. See November 2019 private audiology examination. Therefore, the November 2019 private audiology examination is not material as it is cumulative and does not relate to unestablished fact necessary to substantiate the claim for entitlement to service connection for bilateral hearing loss. See 38 C.F.R. § 3.156(a). In sum, the Board finds that the evidence associated with the claims file following the February 2017 rating decision does not raise a reasonable possibility of substantiating his claim for entitlement to service connection for bilateral hearing loss. The prior denial is final, and the claim for service connection for bilateral hearing loss is not reopened. See U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus related to his military service. See July 2018 VA Form 21-526. Generally, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish direct-incurrence service connection for a disability, the Veteran 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, 1167 (Fed. Cir. 2004). Service connection for certain diseases, including tinnitus as an organic disease of the nervous system, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for hearing loss. 38 C.F.R. § 3.303(b). Tinnitus is, by definition, “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” See Dorland’s Illustrated Medical Dictionary, 1956 (31st ed. 2007). The existence of tinnitus is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The evidence of record demonstrates the Veteran reported experiencing tinnitus described as having ringing in his ears every few days. See March 2016 VA treatment records. Therefore, the first Shedden element of service connection for tinnitus has been established. See Shedden, 381 F.3d at 1166-67. With respect to an in-service injury, event, or disease, the Veteran’s service treatment records indicate the Veteran was treated for a sore throat; however, they are silent for any complaints, and/or treatment for symptoms related to tinnitus. See June 1957 service treatment records. The Veteran testified that he experienced a sore throat and cold while in service; however, did not indicate any symptoms related to tinnitus experienced during active duty service. See July 2020 hearing transcript. The Veteran testified that he was not exposed to any loud noises in service. Id. The evidence of record does not demonstrate, nor does the Veteran argue, that his tinnitus began in service or within one year after separation from service. The first indication of the Veteran’s tinnitus is noted in the March 2016 VA treatment records, more than 50 years after service. Therefore, it has not been demonstrated that the Veteran’s tinnitus was disabling to a compensable degree within a year of the Veteran’s separation from active duty service. Accordingly, the presumption of in-service occurrence is not applicable. See 38 C.F.R. §§ 3.307, 3.309(a). Service connection for tinnitus may still be granted on a non-presumptive direct-incurrence basis; however, the preponderance of the evidence does not demonstrate that a medical nexus exists between the Veteran’s tinnitus and an in-service, injury, event, or disease. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67. As noted, the Veteran testified that he had a sore throat and cold in service and was not exposed to loud noises in service. See July 2020 hearing transcript. The Veteran also testified that he was exposed to loud noises working in a metal shop in 1963 after service. Id. The Veteran’s service treatment records are silent for complaints or findings suggestive of signs or symptoms indicative of tinnitus. The Board notes the Veteran has not yet been afforded a VA examination; however, the Board finds that one is not required. The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the third element required to trigger the VA’s duty to assist is not met. There is no competent evidence of record indicating a link between the Veteran’s tinnitus and his military service. The Veteran, nor his representative, has provided any competent evidence indicating a link between the Veteran’s tinnitus and his active duty service. The Board may weigh the absence of contemporary medical evidence against a claimant’s lay statements. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). In order to do so, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). Here, as noted, the evidence of record does not demonstrate any reports of symptoms related to tinnitus during service and no manifestations of tinnitus until March 2016. See March 2016 VA treatment records. While not dispositive, the passage of so many years is a factor that weighs against a finding of service incurrence and continuity. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent the Veteran contends that his tinnitus is related to service, the Board notes that he has not been shown to have the medical training necessary to render complex medical opinions or opine as to the nature and etiology of his tinnitus. See Kahana v. Shinkseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board further notes that the Veteran has never asserted, nor does the VA treatment records show that any medical professional has told him that his tinnitus is directly related to his active duty service. Accordingly, although McClendon, sets a low bar, that bar has not been met as there is no competent evidence of record indicating a link between the Veteran’s tinnitus and his active service. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between his tinnitus and his active service, a VA examination is not required. For the reasons discussed above, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s tinnitus is related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, entitlement to service connection for tinnitus is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate 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.