Citation Nr: 21042720 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 20-29 680 DATE: July 13, 2021 ORDER New and material evidence has not been presented to reopen the Veteran's claim of entitlement to service connection for a right leg condition, and therefore the claim is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Pursuant to a March 2014 Rating Decision, the Veteran's claims of entitlement to service connection for bilateral hearing loss and a right leg condition were denied. The decision noted that the Veteran failed to appear for a VA examination for bilateral hearing loss. As to the right leg condition, although service treatment records referenced "a sore spot" along the right tibia, no history of a chronic condition was documented. 2. Thereafter, the Veteran failed to perfect an appeal and the March 2014 decision became final. 3. In March 2018, the Veteran filed a request to re-open the previously denied claims. 4. Pursuant to a November 2018 rating decision, the agency of original jurisdiction (AOJ) determined that new and material evidence had not been submitted to re-open the Veteran's previously denied claim for service connection for a right leg condition. Further, while the claim for bilateral hearing loss was successfully reopened, the claim was again, denied. 5. Evidence received since the March 2014 rating decision, while new, is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right leg condition. 6. The preponderance of the evidence weighs against finding that the Veteran's bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The March 2014 rating decision that denied service connection for the Veteran's rig leg condition is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2020). 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a right leg condition has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from August 1952 to June 1954 and the United States Air Force from August 1955, to December 1959. In a September 2020 substantive appeal, the Veteran requested a video conference hearing. In a correspondence, dated March 2021, the Veteran by and through Counsel, requested to withdraw the previous hearing request. The correspondence also requested an extension to submit additional evidence within 90 days. As the requested period has expired, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Relevant Laws and Regulations for New and Material Evidence Claims Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2020). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2020). In general, Board decisions which are unappeased become final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). "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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2020). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. see also McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. 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). Analysis Review of the record indicates that the Veteran's claim for service connection for a right leg condition was originally denied pursuant to a December 1954 rating decision. At the time of issuance, the evidence of record included incomplete service treatment records and the Veteran's DD-214, certificate of release or discharge. The Veteran failed to appeal, and the decision became final. In a March 2014 rating decision, the AOJ again concluded that service connection was not warranted for the Veteran's right leg condition. In reaching this conclusion, the AOJ acknowledged that additional service treatment records had been associated with the claims file. Specifically, in April 1957, the Veteran was treated for "a painful spot" located in the upper right tibia. However, X-ray films found no evidence of fracture or any other abnormality. No further complaints of symptoms documented in service. Post-service treatment records document only a single instance of treatment for right leg pain. Specifically, in 1992, the Veteran underwent a general medical examination during which he reported periodic bouts with pain in the distal aspect of the right leg. The pain was located at the point where the tendons attach to the hamstring group. During the clinical interview, the Veteran acknowledged a history of post-service employment as a coal miner. On physical examination, right knee extension was limited to 0 degrees and flexion limited to 130 degrees. Evidence of crepitus was observed with range of motion. Lateral and medial stress testing, Drawers and McMurray's testing revealed normal findings. No evidence of redness, warmth or effusion of the right knee was indicated. X-rays of the right leg, hip, and knee found no evidence fracture, bone, or joint abnormality. The physician suggested that the Veteran's symptoms were likely associated with tendonitis and slight arthritis of the right knee. Years later, a primary care physician's note shows that a physical examination of the lower extremities found no evidence of edema, or any other abnormality con in March 2014. While the AOJ considered the additional evidence, it was deemed insufficient to establish a chronic disability or causal linkage to active service. Again, the Veteran failed to appeal the March 2014 decision and it subsequently became final. In March 2018, VA received a request to re-open the previously denied claims. Records associated with the claims file since the March 2014 rating decision included additional VA and private treatment records and multiple lay statements. Although the updated treatment records were new, they failed to establish complaints of chronic symptoms or evidence of treatment for a right leg disability dating back to active service. In fact, only a single instance of treatment was noted in-service and no new complaints of symptoms until many years later. Similarly, the Veteran's lay statements merely reiterate prior claims regarding his right leg condition. Moreover, the Board observes that the Veteran's counsel submitted an appellate brief in April 2021. Therein, Counsel restated the Veteran's assertion that he suffered a pulled muscle in the right leg when boxes of ammunition fell on him during active service. Post service, he received treatment for weakness in his leg during the 1990s. According to counsel, the noted evidence should be sufficient satisfy the "low threshold" standard establishing by Shade. Upon review of the record, the Board agrees that the evidence submitted since March 2014 does not qualify as new and material evidence sufficient to reopen the Veteran's claim. While some the aforementioned evidence is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the Veteran's claim nor does it raise a reasonable possibility of substantiating his claim. Accordingly, the Board finds that new and material evidence has not been received since the March 2014 rating decision. Therefore, as a preponderance of the evidence is against this claim, the benefit-of-the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim to reopen must be denied. Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2020). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, 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 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is causally related active service, to include as due to exposure to acoustic trauma therein. His tenure of service included a period of service during the Korean War. As discussed in more detail below, the preponderance of the evidence is against his claim. According to his DD-214, the Veteran's official military occupation was listed as an organizational supply specialist and corporal ammunition handler. As a high probability of hazardous noise exposure has been associated with both roles, acoustic trauma is conceded. The threshold inquiry before 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 a current diagnosis of bilateral hearing loss, and evidence suggests in-service hazardous noise exposure, the preponderance of the evidence weighs against finding that the Veteran's bilateral hearing loss is causally related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Review of service treatment records are silent for complaints of hearing loss, ear trouble, or ringing in the ears. In February 1952, a pre-enlistment examination with the United States Army found no evidence of any disqualifying physical abnormalities. No audiological findings were indicated. The Veteran was deemed qualified for active service. At enlistment examination with the United States Air Force, no impairment involving the bilateral legs or documented hearing loss was reported in August 1955. The same month, a report of medical history was silent for any complaints of hearing loss, tinnitus, trick or lock knee, bone, joint, or other abnormality. At separation in November 1959, the Veteran denied any changes in physical condition or medical history. No abnormalities of the bilateral legs or hearing impairment was identified. Post-service treatment records document a current diagnosis of bilateral hearing loss. In May 1991, the Veteran underwent an evaluation at an ear clinic. During the clinical interview, he complained of progressive hearing loss in the right ear over the previous 6 to 8-year period. The Veteran complained that his symptoms impair his ability to hearing in conversations by phone or in person. Fluctuating tinnitus also impacted the left ear. Post-service hazardous noise exposure was endorsed while working as a coal miner for 9 years. The Veteran denied any history of recreational noise exposure. Years later, in March 2014, a primary care treatment record noted that a physical examination of the Veteran's bilateral ears revealed normal tympanic membranes. No reports of a right leg condition were identified. Two years later, in February 2016, a primary care treatment record listed complaints of a hearing impairment. An otolaryngology consultation, dated August 2018, listed severe to profound sensorineural hearing loss with asymmetry. Multiple severe co-morbidities were deemed likely to prevent an aggressive workup for hearing loss. Use of hearing aids were recommended to maximize the Veteran's quality of life. One month later, in September 2018, an audiology medical device evaluation was conducted. The Veteran's history of asymmetrical hearing loss or middle ear pathology was documented. Due to a recent medical clearance, he was fitted for sound amplification devices. The evaluation notes indicated that the current severity of the Veteran's hearing loss impairs his ability to understand repetition of words without visual cues. However, with use of hearing aids, his responses represented optimal functional ability. On the authorized audiological evaluation in October 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT CNT CNT CNT CNT CNT LEFT CNT CNT CNT CNT CNT Pure tone threshold averages were 105 decibels (dB) for the right ear and 105 dB for the left ear. Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 0 percent in the left ear. As described in the following paragraph, pure tone threshold averages and speech recognition scores are of little probative value in this case. Following the audiological examination, the examiner noted that could not test (CNT) was entered as pure tone threshold measurements were not possible for this Veteran. The findings were deemed invalid for rating purposes. The examiner noted that the Veteran provided inconsistent responses even after reinstruction and multiple test trials. Use of speech recognition scores were inappropriate for this Veteran due to language difficulties, cognitive problems, and inconsistent speech discrimination scores. During the clinical interview, the Veteran reported an onset of bilateral tinnitus in in the 1950's. While the examiner acknowledged the suggestion that his symptoms were causally related to hazardous noise exposure in service, no opinion was offered as the Veteran's audiometric scores were deemed inconsistent or unreliable. In November 2019, a private audiological examination confirmed a current diagnosis of bilateral sensorineural hearing loss. During the clinical interview, the Veteran reported a history of hearing loss dating back to active service in South Korea. According to the Veteran, his active duty service included service with the United States Army and United States Air Force. Since separation, he acknowledged occupational exposure to hazardous noise while working in coal mines and in a paper factory. The Veteran denied any history of ear surgeries or ear infections. Other symptoms include bouts with tinnitus. Reportedly, his symptoms date back to active service. Following the audiological testing, a current diagnosis of profound sensorineural hearing loss was documented in both ears. The speech awareness threshold was documented as 100 dB in the right ear with no response to speech in the left ear. Speech discrimination could not be tested due to the severity of the Veteran's hearing loss. A separate private medical opinion, dated May 2020, was associated with the claims file. Therein, the physician acknowledged a current diagnosis of bilateral hearing loss. The opinion noted that the Veteran denied participation in a hearing conservation program or use of hearing protection in-service. The physician suggested a review of scholarly articles regarding impulse noise exposure. Lay statements from the Veteran and several relatives were also considered. Considering the Veteran's severe to profound bilateral hearing loss, coupled with research study findings and in-service exposure to hazardous noise exposure, the physician concluded that his bilateral hearing loss and tinnitus were likely related to active service, to include hazardous noise exposure therein. Again, in August 2020, the Veteran underwent an authorized audiological evaluation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT CNT CNT CNT CNT CNT LEFT CNT CNT CNT CNT CNT Following the clinical evaluation, the examiner noted that the Veteran was involved in artillery and supply work during active service. Service treatment records were silent for any complaints of hearing loss or tinnitus. During the clinical interview, the Veteran reported an onset of bilateral tinnitus in in the 1950's. Current audiological findings were deemed inconsistent with organic hearing loss. The Veteran's volunteered pure tone thresholds varied by 20 decibels (dB). Speech discrimination scores were listed as 0 percent, bilaterally. Although the examiner acknowledged a lack of evidence of bilateral hearing loss or tinnitus prior to active service, an etiological opinion could not be offered as the audiological findings were incompatible with organic hearing loss. Following the audiological examination, the examiner noted that could not test (CNT) was entered as pure tone threshold measurements were not possible for this Veteran. The findings were deemed invalid for rating purposes. The examiner noted that the Veteran provided inconsistent responses even after reinstruction and multiple test trials. Use of speech recognition scores were also deemed inappropriate due to language difficulties, cognitive problems, and inconsistent speech discrimination scores. While the examiner acknowledged the suggestion that the Veteran's symptoms were causally related to hazardous noise exposure in service, no opinion was offered as the audiometric scores were deemed inconsistent or unreliable. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. It is worth noting that the claim's file contains lay statements from the Veteran and several close personal connections; all attesting to the Veteran's good health with no apparent ailments prior to service. The statements reference personal knowledge of his struggles with post-service hearing loss and its impact on his quality of life. While the Veteran and lay witnesses are competent to describe observable symptoms and their onset, the Board accords little probative value to the statements regarding etiology as neither the Veteran nor his lay witnesses are competent to opine on complex medical questions. The etiology of the Veteran's disability falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460 (1999); Kahana v. Shinseki, 24 Vet. App. 428 (2011). To the extent that the lay statements of record might be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Moreover, the Board recognizes that the Veteran has been afforded multiple VA examinations. Regrettably, no opinion could be offered based on the inconsistent and unreliable audiometric scores. While the VA examination findings are inadequate for evaluative purposes, the Board finds that an additional examination would service no useful value as the record is largely silent for any suggestion of a possible "nexus" between the Veteran's current bilateral hearing loss and acoustic trauma during active service. In addition, the Veteran acknowledged a post-service employment history which included many years of occupational noise exposure in coal mines and a paper factory. Accordingly, the Board finds that totality of the evidence insufficient to establish an etiological linkage in-service hazardous noise exposure and the Veteran's current diagnosis of hearing loss, which was first rendered decades after separation. While the Board recognizes the Veteran's subjective belief that his bilateral hearing loss was causally related to active service, the evidence of record does not support his contention. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for bilateral hearing loss must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.