Citation Nr: 21015540 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-12 282A DATE: March 17, 2021 ORDER New and material evidence having been received, the claim of service connection for a left hip condition is reopened. New and material evidence having not been received, the petition to reopen the previously denied claim of service connection for hearing loss is denied. Service connection for tinnitus is denied. REMANDED Service connection for a back condition. Service connection for a right hip condition. Service connection for a left hip condition.   FINDINGS OF FACT 1. The evidence received since a March 1993 Board decision denying service connection for hearing loss is cumulative and redundant of evidence of record at the time of the prior denial and, when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, or otherwise raises a reasonable possibility of substantiating the claim. 2. The Veteran’s tinnitus did not have its onset in and is not related to service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for hearing loss are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to August 1992, November 2001 to March 2002, April 2003 to July 2003, October 2003 to February 2004, and on active duty for training (ACDUTRA) from October 2004 to April 2005. The case is on appeal from a June 2013 rating decision. In an April 2015 substantive appeal, the Veteran requested a Board hearing by live videoconference. However, in November 2020, the Veteran’s representative withdrew the hearing request. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a left hip condition. By a March 1993 rating decision, a claim of service connection for residuals of a left hip condition was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in July 2012. No new evidence or notice of disagreement was received by VA within one year of the issuance of the March 1993 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a left hip condition is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also July 2012 lay statement. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for hearing loss. By a March 1993 rating decision, a claim of service connection for hearing loss was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in July 2012. No new evidence or notice of disagreement was received by VA within one year of the issuance of the March 1993 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Accordingly, the Veteran must submit new and material evidence in order to reopen the claim. The pertinent evidence associated with the record at the time of the March 1993 rating decision consisted of Veteran’s DD Form 214; service treatment records (STRs), service personnel records (SPRs), and a VA examination. The March 1993 rating decision denied service connection for hearing loss on the basis that there was no evidence to support the present existence of hearing loss and the Veteran’s STRs did not reflect a diagnosis of, complaints of, or treatment for hearing loss. The pertinent evidence associated with the claims file since the March 1993 rating decision consists of additional STRs, the Veteran’s July 2012 lay statement reflecting his assertion that he has hearing loss that is related to his duties, and a December 2012 VA examination. The Board finds that this evidence is “new” in that it was not before a VA adjudicator in March 1993. However, the Board finds that the new evidence is not “material” because it does not relate to an unestablished fact necessary to substantiate the claim which is the reason the claim was previously denied. The March 1993 rating decision denied service connection on the basis that there was no evidence to support the present existence of hearing loss. The new evidence continues to support that the Veteran does not have a hearing loss diagnosis, as the new audiometric testing of record including testing completed in February 2003 and the December 2012 VA examination continue to reflect the absence of hearing loss. In addition, the new STRs also reflect the absence of, diagnosis of, complaints of, or treatment for hearing loss. Accordingly, the evidence received since the final March 1993 Board decision is not new and material under 38 C.F.R. § 3.156(a). Even with consideration of the low threshold set forth in Shade, the Veteran has not submitted any new and material evidence that relates to an unestablished fact necessary to substantiate the claim. For these reasons, reopening the claim of service connection for hearing loss is not warranted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for tinnitus. The Veteran is seeking service connection for tinnitus. He contends he has tinnitus that is related to his exposure to constant noise from aircraft while working on the flight line at Sheppard Air Force Base. Initially, the current disability requirement is established for the claim. A December 2012 VA examination reflects a diagnosis of tinnitus. The evidence of record also shows the occurrence of an in-service event or injury. The Veteran contends he was exposed to constant noise from aircraft while working on the flight line at Sheppard Air Force Base. In this case, the Board finds that the Veteran is competent to report what he experienced while in the military. Moreover, his testimony is consistent with the circumstances of his service. The Veteran’s service personnel records reflect that his duties, including maintenance of airfield lighting, traffic signal lights, fire alarms, placed him in the vicinity of aircraft. Accordingly, the record reflects that the Veteran was exposed to aircraft noise, particularly when reasonable doubt is resolved in his favor. Thus, the question becomes whether there is a nexus between the Veteran’s current tinnitus and his exposure to aircraft noise during service. In this regard, the evidence of record includes the opinion of the examiner who provided the December 2012 VA examination. That examiner concluded that it is less likely than not that the Veteran’s tinnitus is caused by or the result of military noise. She explained that there were no shifts in hearing thresholds in the Veteran’s service treatment records or any reports of tinnitus onset. The examination also notes that the Veteran reported that the onset of his tinnitus is unknown. The Board acknowledges the Veteran’s contention that his tinnitus is related to his exposure to aircraft noise. However, the Veteran is not competent to provide an etiological opinion in this case. The Veteran as a lay person is not competent to provide an opinion as to the etiology of his tinnitus, as this is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA opinion described above. The examiner thoroughly reviewed the Veteran’s record and based on this review, and her clinical experience, she opined that the Veteran’s tinnitus is not related to service. She supported her conclusions with well-reasoned analysis considering the relevant facts. Her opinion is afforded significant weight because it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In reaching the 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, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for tinnitus. REASONS FOR REMAND 1. Service connection for a back condition. 2. Service connection for a right hip condition. 3. Service connection for a left hip condition. The Veteran is seeking service connection for a back condition and a bilateral hip condition. He asserts he experiences increased pain and discomfort in his hips and back as a result of prolonged periods of standing and walking on the concrete flight line at Sheppard Air Force Base. Given the Veteran’s statement concerning recurrent symptoms, and at least an indication of a relationship to service, an examination and medical opinion are warranted for these claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of any back and hip condition(s). The entire claims file should be reviewed by the examiner. First, the examiner should identify the Veteran’s back and hip condition(s), which may include pain alone that rises to the level of functional impairment. (Continued on the next page)   The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition or pain that rises to the level of function impairment had its onset during service, or is otherwise causally related to service. The examiner should consider the Veteran’s contention that he has a back and hip condition that is related to prolonged periods of standing and walking on the flight line. A detailed rationale supporting the examiner’s opinion must be provided. KANISHA R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.