Citation Nr: 21030021 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-54 324 DATE: May 17, 2021 ORDER New and material having not been received, the application to reopen the claim of service connection for chorioretinitis is denied. Service connection for a disability manifested by pain of the mid-back is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Service connection for a chronic eye disorder was last denied by the Regional Office (RO) in an October 2002 rating action on the basis that chorioretinitis preexisted service and was not aggravated therein; the Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. The additional evidence received subsequent to the October 2002 rating decision denying service connection for a right eye disorder, although not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that a chronic mid-back disability began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss at any time during or approximate to the pendency of the claim. 5. The Veteran's sensorineural hearing loss of the left ear was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the October 2002 rating decision that denied service connection for a chronic eye disability is not new and material; thus, the claim for service connection for this disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for pain of the mid-back, including arthritis of the spine, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to October 1966. In February 2021, a videoconference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis and sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under Section 1111 requires the government to show by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Whether new and material has been received to reopen the claim of service connection for chorioretinitis Service connection for a chorioretinitis was previously denied by the RO in April 1974 and October 2002 rating decisions. The Veteran did not appeal or submit new and material evidence within one year of either determination. The last decision denial on any basis is to be finalized. Evans v. Brown, 9 Vet. App. 273 (1996). In such cases, it must first be determined whether new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). Evidence of record at the time of the October 2002 rating decision that last denied service connection for chorioretinitis included the Veteran's service treatment records (STRs). These showed that, while the Veteran was not noted to have chorioretinitis at the time of his preinduction physical, on Medical Evaluation Board examination it was reported that the Veteran had been seen at the eye clinic on numerous occasions and had also been hospitalized with complaints of severe headaches. Examination noted best corrected vision of 20/80 in the right eye and 20/40 in the left eye. There were indications of the right eye of a questionable active inflammatory lesion of the retina in the upper nasal quadrant and a vitreous reaction inferiorly in the right eye. The left eye appeared to be normal, but a psychoplegic refraction could not improve vision better than 20/40. The examiner noted that a letter from the County of Los Angeles General Hospital pertaining to an active eye disease for which he was treated from April 1965 to September 1965 was provided by the Veteran. While this letter was no longer available, the examiner noted that a second letter had been received that indicated the Veteran had been treated for inflammatory disease of the retina. A copy of the second letter, dated in June 1966, shows that the Veteran was treated in May 1965 for a large retinal tear of the right eye in the periphery at 10 o'clock and an inverted "v" shaped tear in the lower periphery. Under these circumstances, the examiner recommended that the Veteran be separated from service. The Medical Board then found that the Veteran was medically unfit for duty due to chorioretinitis that had existed prior to service. It was determined that this was not caused incident to service, and had not been aggravated by service. Service connection for an eye disorder was denied by rating decision in April 1974 on the basis that the Veteran's chorioretinitis pre-existed service and was not aggravated by service. The October 2002 rating decision continued this denial on the basis that new and material evidence was not submitted to reopen the claim. Evidence received subsequent to the October 2002 rating decision that last denied service connection for an eye disorder includes records of private medical treatment. These include a general ophthalmology examination workup in January 2016 that showed right eye pain, an orbital disorder, right floppy eyelid syndrome and cataracts. The record shows that the Veteran underwent a surgical procedure on his right eye in February 2016. On examination by VA in April 2017, the diagnoses were nuclear sclerosis of both eyes and retinal tear of the right eye. Following examination, the examiner opined that the conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the medical records contained a letter documenting that the Veteran was treated in May 1965 for an eye condition that was believed to be a traumatic non-pathogenic inflammation. This occurred prior to the Veteran's induction into military service and his time in service was limited to approximately six months. Therefore, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In addition, the Veteran testified at the February 2021 Board hearing that he believed his eye was aggravated by service, specifically by several fights in which he was involved during his training. His spouse also testified that the Veteran now had complaints of headaches and blurred vision identical to those that were documented during service. She noted that she had been married to the Veteran since service and stated that the Veteran had been seeing floaters since service that had been increasing in size. 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 submitted 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the current medical evidence in combination with the hearing testimony are not sufficient to reopen the claim of service connection. Specifically, the medical evidence submitted consists exclusively of records of treatment many years after service that does not indicate in any way that the condition increased in severity while the Veteran was on active duty and a medical opinion that the Veteran's current eye disorders are unrelated to service. Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). Regarding the hearing testimony provided in relation to this appeal, while the Board acknowledges that the Veteran may have been involved in several fights during service, in the absence of a demonstration of an increase in the severity of the Veteran's eye disorder, there is no basis for a finding of aggravation of the condition that was found to have preexisted service. As such, the testimony in and of itself is not sufficient to reopen the previously denied claim for service connection and the claim remains denied. Entitlement to service connection for pain of the mid-back The Veteran contends that service connection should be established for pain of the mid-back. During the February 2021 Board hearing, the Veteran testified he was injured in a fight during his training. He stated he was sent to the hospital for back pain where he was told that he probably had the flu, and later received treatment at a private facility that disclosed scarring in his back and kidney with a current diagnosis of retroperitoneal fibrosis. He believed this to be the result of the fights that he had while in service. The Board notes that in an October 2017 rating decision, the RO denied service connection for retroperitoneal fibrosis and a right kidney condition. The Veteran initially evidenced disagreement with the denial and a Statement of the Case was issued. The Veteran was informed of the time limits for perfecting an appeal, but did not do so. Hence this issue is not properly before the Board. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. § 20.302(c); Roy v. Brown, 5 Vet. App. 554 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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 disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has had complaints of mid back pain and has been diagnosed with degenerative joint disease of the spine on X-ray study, the preponderance of the evidence is against finding that this began during active service, or is otherwise related to an in-service injury, event, or disease. In this regard, the Board notes that the Veteran's STRs fails to demonstrate complaints or manifestations of a mid-back disability. On examination at the time of his release from active duty, in October 1966, clinical evaluation of the Veteran's spine was normal. Post-service medical records include the results of a November 2015 bone scan study that demonstrated mid cervical spine and lumbosacral spine degenerative joint disease. A May 2017 treatment record reported for clinical purposes that the Veteran's chronic back pain had been present since 2009. This is far removed from service and many years after the presumptive period for service connection for arthritis. While the Veteran believes his mid back pain is related to injuries sustained during service, the Board reiterates that there is no evidence that the Veteran had a chronic low back disability during service. While he may have been involved in a fight in service, the absence of a spine abnormality in 1966 combined with the private treatment record demonstrating the onset of the disorder in 2009 weighs against findings that his current chronic disability is related to service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a chronic mid-back disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for bilateral hearing loss The Veteran contends he has bilateral hearing loss that is the result of in-service noise trauma. During the February 2021 Board hearing, the Veteran testified that he was exposed to noise trauma on the rifle range at least ten times during service and that subsequent to service, he was not exposed to any loud noises, including through his hobbies. The Veteran's spouse also testified that she noted the Veteran's hearing loss when he first came home from active duty and that it worsened about five years after his separation from service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Regarding sensorineural hearing loss, service connection may also be established if the disorder is manifested to a compensable degree within one year of service discharge. Service connection for impaired hearing shall not be established unless the hearing status meets pure tone and speech recognition criteria. Hearing status will be considered to be a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 hertz is 40 decibels or greater; thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores used in the Maryland CNC tests are less than 94 percent. 38 C.F.R. § 3.385. "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Review of the record shows that the Veteran did not have any complaints, findings, treatment, or manifestation of hearing loss while he was on active duty. On examination in October 1966, his hearing of whispered voice was noted to be 15/15 bilaterally, and in the accompanying report of medical history, the Veteran denied having or ever having had hearing loss or ear, nose, throat trouble. On examination by VA in April 2017, pure tone audiometry showed air conduction threshold levels to be as follows: Hertz 500 1000 2000 3000 4000 6000 8000 Right ear 25 20 20 25 25 25 25 Left ear 40 35 35 45 40 45 40 Speech discrimination scores were noted to be 94 percent correct in each ear. The diagnoses were normal hearing of the right ear and sensorineural hearing loss of the left ear. Regarding the left ear, the examiner stated that the hearing loss was not at least as likely as not caused by or the result of an event in military service. The rationale was the Veteran denied having a history of hearing loss at the time of examination in October 1966 when hearing of whispered voice was 15/15. The examiner went on to cite an Institute of Medicine study from 2005 that states there is no scientific basis for delayed onset noise induced hearing loss 20 to 30 years after service and noted that a more recent study had also found that both veterans and non-veterans were equally likely to have hearing loss to a degree with increased age. Therefore, the examiner stated it was difficult to attribute the Veteran's recent hearing impairment functioning solely to the trauma suffered during military service and not to consider other factors such as aging and noise exposure from occupational activities after military service. Moreover, the examiner remarked that the Veteran reported firing weapons during service with his right hand. Regarding the claim of hearing loss of the right ear, it is noted that hearing loss by VA standards has not been demonstrated and the Veteran was found on VA examination to have normal hearing of the right ear. In the absence of proof of a current disability there is no valid claim of service-connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a right ear hearing loss is not warranted. Regarding the claim of hearing loss of the left ear, the Board concludes that, while the Veteran has a diagnosis of sensorineural hearing loss of the left ear, the preponderance of the evidence is against finding that this began during active service, or is otherwise related to an in-service injury, event, or disease. There is no documentation of sensorineural hearing loss within one year of his discharge from service and no documentation of hearing loss to a compensable degree at any time. 38 C.F.R. § 4.85 and Tables VI, VIa, and VII. While the Veteran believes his hearing loss is related to noise trauma during service, the evidence shows that he does not have a current demonstration of right ear hearing loss and sensorineural hearing loss of the left ear is not demonstrated in service, within one year of service, or due to any inservice event. Significantly, the Veteran and his spouse's testimony that he had hearing loss in service and thereafter is not supported by the record given his denial of hearing loss and any ear trouble at the time of separation from service in October 1966. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.