Citation Nr: 21012637 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-34 537 DATE: March 4, 2021 ORDER As new and material evidence has been received, the service connection claim for a right ear hearing loss disability is reopened. Entitlement to service connection for a right ear hearing loss disability is granted. Entitlement to service connection for right elbow tendinitis is denied. Entitlement to service connection for left elbow tendinitis is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. An unappealed September 2009 rating decision denied the claim for service connection for hearing loss. 2. New evidence received since the September 2009 final rating decision raises a reasonable possibility of substantiating the service connection claim for a right ear hearing loss disability. 3. Resolving reasonable doubt in the Veteran’s favor, right ear hearing loss was incurred in service. 4. The preponderance of the evidence is against finding that right and/or left elbow tendinitis began during active service or for many years thereafter, and neither condition is otherwise shown to be related to service. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied the Veteran’s claim for service connection for a hearing loss disability is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received after the last final rating decision is new and material to the service connection claim for a right ear hearing loss disability, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a right ear hearing loss disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right elbow tendinitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for left elbow tendinitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to March 1985. By way of procedural background, the Veteran submitted a service connection claim for bilateral hearing loss. During the pendency of the appeal, the RO granted service connection for left ear hearing loss in an August 2017 rating decision. As this award was a grant of the full benefits sought, that claim is no longer on appeal. The Veteran testified before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing is of record. The Veteran has claimed entitlement to service connection for PTSD. In light of the Court’s decision in Clemons, the Board has re-characterized the psychiatric issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence Claim Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “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). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed August 2006 rating decision, the RO denied service connection for hearing loss because there was no evidence of a diagnosed hearing disability for VA purposes as defined by 38 C.F.R. § 3.385. In a rating decision in September 2009, the RO declined to reopen the claim for service connection for a hearing loss because new and material evidence had not been presented to reopen the claim. The RO determined that hearing loss was not shown. The Veteran was notified of the rating decision, but did not appeal it. As such, the September 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence received since the September 2009 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The medical evidence reflects diagnoses and treatment for hearing loss under 38 C.F.R. § 3.385. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for right ear hearing loss The Veteran claims that he currently suffers from right ear hearing loss incurred in service. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. “[W]hen audiometric test results at Veteran’s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. In this case, the current medical evidence shows that the Veteran has right ear hearing loss disability as defined by 38 C.F.R. § 3.385. With respect to an in-service injury or disease, the Veteran is competent to describe his in-service noise exposure from aircraft while working on the flight line, as such is that which he may discern from his senses. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Significantly, the Veteran’s DD Form 214 reflects that he served as APR aircraft armament specialist. The Board notes that the Veteran’s reports of in-service noise exposure are credible because they are consistent with the circumstances of his service and the personnel records. Accordingly, the Board finds that the element of an in-service injury, consisting of acoustic trauma, has been met. The service treatment records do not indicate any complaints or diagnosis of hearing loss during service. Although the Veteran did not have a significant threshold shift at any tested frequencies, the March 1985 audiogram did note threshold shifts in both ears. Specifically, 5 decibels upward shifts at 500 Hertz and 2000 Hertz in the right ear between the June 1981 and March 1985. While right ear hearing loss under 38 C.F.R. § 3.385, was not demonstrated during service, as noted, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. Here, the evidence shows a current diagnosis of right ear hearing loss for VA purposes and military acoustic trauma has been conceded. On VA examination in March 2015, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 25, 25, 30, and 25. Speech discrimination was 94 percent in the right ear. The examiner noted a high probability of exposure to hazardous levels of noise while in the military and opined that the right ear hearing loss was less likely than not caused by or a result of service because there were no significant threshold shifts noted when comparing Veteran’s entrance audiological evaluation to his separation audiological evaluation. On VA examination in August 2017, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 35, 40, 45, and 40. Speech discrimination was 88 percent in the right ear. The examiner opined that the right ear hearing loss was less likely than not caused by or a result of service because there were no significant threshold shifts noted in service. A veteran is competent to describe observable symptoms such as problems hearing. See Jandreau v. Nicholson, 492 F.3d at 1376-77; Charles, 16 Vet. App. 370, 374-75 (2002). The Veteran reported hearing problems during service. The Board is cognizant that, the VA examiners provided evidence against the claim. The VA examiners appear to have relied on the lack of a complaint or finding of hearing loss during service; however, the lack of treatment in service isn’t necessarily dispositive of the issue, particularly where, as here, the Veteran has credibly reported that his impaired hearing due to in-service noise exposure. In this case, the lack of treatment during service doesn’t automatically rule out whether the Veteran’s right ear hearing problems initially manifested in service. The Board finds it significant that service connection for left ear hearing loss and tinnitus has been established as related to acoustic trauma in service. As there is a current diagnosis of right ear hearing loss, in-service noise exposure, in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran associating his right ear hearing loss with in-service acoustic trauma provide a nexus linking his current right ear hearing loss to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran’s current right ear hearing loss and active service. Therefore, service connection for right ear hearing loss is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. 2. Entitlement to service connection for right elbow tendinitis 3. Entitlement to service connection for left elbow tendinitis The Veteran contends that he has right and left elbow tendinitis due to doing a lot of heavy lifting in service. There is evidence of current diagnosis of bilateral elbow tendinitis. The service treatment records contain no complaints, history or findings consistent with right or left elbow tendinitis. On separation from service in March 1985 the Veteran’s bilateral upper extremities were clinically evaluated as normal. According to the March 1985 report of medical history the Veteran denied having painful or “trick” shoulder or elbow. It is important to note that at that point above it is the Veteran who provides evidence against these claims. After service, private treatment records after 2014, noted tendinitis of the right and left elbows. Thus, the evidence does not reflect tendinitis of either elbow in service or within one year following discharge from service, or until more than two decades after discharge from service. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records. Thus, the Veteran has not adequately shown that his claimed bilateral elbow tendinitis had onset in service and continued since service. Here, there is no competent and credible evidence of a nexus between the Veteran’s bilateral elbow tendinitis and service. The only evidence of record in support of such a nexus is the Veteran’s lay opinion. To the extent the Veteran believes that his claimed disabilities are related to service, to include any injuries incurred therein, as a lay person, the Veteran does not have the specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnoses and/or etiology of bilateral elbow tendinitis require medical testing and expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current claimed disorders, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s assertions regarding the etiology of bilateral elbow tendinitis, diagnosed many years after service, and service, are of little probative value. In this regard, it is important for the Veteran to understand that the post-service treatment records provide particularly negative evidence against this case. A VA examination or medical opinion regarding the etiology of his bilateral elbow tendinitis is not indicated as there is no suggestion that the Veteran’s claimed disorders may be associated with service. Again, there is no competent evidence of tendinitis affecting either upper extremity in service or within one year following discharge from service. Moreover, there is no competent and probative evidence to show that the Veteran had right or left elbow tendinitis during or contemporaneous with service and no competent and probative evidence that his claimed disorders are related to his service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claims for service connection for right or left elbow tendinitis, and that the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran seeks service connection for an acquired psychiatric disorder. He claims that he developed PTSD after he witnessed a fellow airman get sucked into a running aircraft engine and killed. Although in February 2017, VA made a formal finding of insufficient evidence to corroborate the Veteran’s claimed PTSD stressors, at the July 2020 Board hearing the Veteran provided additional details regarding the claimed stressor that may be verifiable. The Veteran identified by name the airman who (named on p. 11 of the hearing transcript committed) reportedly got sucked into a running aircraft engine and killed. He stated that the accident occurred sometime in the winter months of 1983 and 1984 while he was stationed at Langley Air Force Base in Hampton. This information was not previously disclosed to the RO. Accordingly, a further attempt to verify the Veteran’s stressor should be made. Finally, in the October 2020 brief, the appellant’s representative identified outstanding treatment records relevant to the claim on appeal, specifically, records from Cornell-Scott Hill Health Center located in New Haven, Connecticut. On remand, these records should be obtained and associated with the claim file. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for a psychiatric disability, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release forms, request all identified pertinent medical records, to include records from Cornell-Scott Hill Health Center located in New Haven, Connecticut. All development efforts should be associated with the claims file. If the requested records cannot be obtained, the Veteran should be notified of such. If possible, the Veteran should get these records and submit them himself to expedite the case. It would also be of great help to the Board. 2. Arrange for verification of the Veteran’s alleged stressor event in service that he witnessed a fellow airman (named on p. 11 of the hearing transcript committed) get sucked into a running aircraft engine and killed sometime in the winter months of 1983 and 1984; confirm that such person served, served in the same unit as the Veteran or co-located with the Veteran, and was killed in an aircraft engine accident during the Veteran’s service while stationed at Langley Air Force Base in Hampton, Virginia. Afford the Veteran an opportunity to provide any additional information regarding his claimed in-service stressor. If the claimed PTSD stressor cannot be corroborated, issue a formal finding and notify the Veteran and his representative of such finding. 3. If and only if a PTSD stressor is verified, the Veteran should be afforded a VA examination by a psychiatrist or psychologist. The Veteran’s claims file must be available to the examiner for review. All indicated tests and studies should be accomplished and the findings reported in detail. Following a review of the file and an examination of the Veteran the examiner is asked to address the following: a. Determine whether the Veteran meets the criteria for PTSD, the examiner should explicitly discuss which criteria for diagnosis are missing (under either DSM-IV or DSM-V criteria), and if so, whether it is at least as likely as not (a 50 percent or greater probability) that PTSD is due to the corroborated in-service stressor event. If PTSD is not diagnosed, but a stressor event is found to be verified, the examiner must explain why the Veteran does not meet the criteria for such diagnosis. b. For any other psychiatric diagnosis present on examination or during the pendency of the appeal, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any such diagnosis is related in any way to the Veteran’s active duty service. Please explain why or why not. A complete rationale must be provided for any opinion offered. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.