Citation Nr: 18124019
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-27 947
DATE:	August 3, 2018
ORDER
As new and material evidence has not been presented to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss, the appeal is denied. 
As new and material evidence has not been presented to reopen a previously denied claim of entitlement to service connection for tinnitus, the appeal is denied.
The claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied.
FINDINGS OF FACT
1.   The evidence submitted since the September 1991 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss.
2.   The evidence submitted since the September 1991 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for tinnitus.
3.   The evidence of record does not reflect that the appellant has ever been diagnosed with any psychiatric disorder, to include PTSD.
CONCLUSIONS OF LAW
1.   The September 1991 rating decision that denied the appellant’s claim of entitlement to service connection for bilateral hearing loss is final.  38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 
2.   Additional evidence submitted subsequent to the September 1991 rating decision that denied the appellant’s claim for service connection for bilateral hearing loss is not new and material.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156.
3. The September 1991 rating decision that denied the appellant’s claim of entitlement to service connection for tinnitus is final.  38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 
4.   Additional evidence submitted subsequent to the September 1991 rating decision that denied the appellant’s claim for service connection for tinnitus is not new and material.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156.
5.   The criteria for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran appellant had active service in the United States Army from May 1968 to June 1972, including a year in Vietnam; he was awarded the Combat Infantryman’s Badge (CIB) and the Purple Heart Medal.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied the appellant’s claims.
The Board notes that the appellant’s claims for service connection for bilateral hearing loss and tinnitus were originally denied in a September 1991 rating decision; he was notified of the denials that same month, but he did not complete the steps required to appeal those denials.  The September 1991 rating decision therefore represents the last final action on the merits of the claims for service connection for bilateral hearing loss and tinnitus.  See Glynn v. Brown, 6 Vet. App. 523 (1994).  The September 1991 rating decision also represents the last final decision on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  Thus, the Board must consider whether any of the evidence submitted since the September 1991 rating decision constitutes new and material evidence on the issues of entitlement to service connection for bilateral hearing loss and tinnitus.
While the appellant’s claim of entitlement to service connection for bilateral hearing loss was considered de novo by the RO, the Board notes that the Board is obliged to determine in the first instance whether there is new and material evidence to reopen the claim, regardless of the RO’s action.  Barnett v. Brown, 8 Vet. App. 1 (1995).  Accordingly, the attempt to reopen the issues of entitlement to service connection for bilateral hearing loss and tinnitus will be addressed below.
New and Material Evidence (Bilateral Hearing Loss and Tinnitus)
New and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b).  Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007).  The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered “new and material,” and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  
The credibility of the evidence is presumed for the purpose of reopening.  Justus v. Principi, 3 Vet. App. 510 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).
The appellant’s claims for service connection for bilateral hearing loss and tinnitus were denied in essence because there was no evidence of record that indicated that the appellant had the claimed conditions in service or that the claimed conditions were related to any incident of service.  In the Veteran’s June 1991 claim, he reported he experienced hearing loss in both ears from a fire fight in Vietnam in January 1969.  The 1991 VA examination report shows the Veteran reported that he had loss of hearing and ringing in the ears from a fire fight in Vietnam while aboard a LCM in January 1969.  He maintained that the loss of hearing and ringing in his ears had progressed to a point that it was affecting his job and his personal life. He reported that his hearing loss and constant tinnitus dates back to the early 1970s.  
The evidence added to the record subsequent to the issuance of the September 1991 rating decision that denied service connection for bilateral hearing loss and tinnitus includes written statements from the appellant and the report of a VA audio examination conducted in July 2014.  The appellant has reported that he has been experiencing problems with hearing loss and tinnitus ever since his service in Vietnam.  He stated that he was an infantryman during his first enlistment and that he was wounded during a firefight in February 1969, and that he was blown off his feet by a nearby explosion in June 1969.  The report of the July 2014 VA audio examination shows the examiner noted that the Veteran served in the Army from 1968 to 1972 in an Infantry unit in Vietnam (1 year) and as a mechanic for the last 2 years. The Veteran reported noise exposure from firefights while serving in Infantry. He also claimed a M16 went off close to his right ear and a handgun next to his left ear. He claimed he could not hear for about a day and a half. Hearing protection was not available. Prior to enlistment he worked at a sawmill (1 1/2 years) and pumped gas for 1 1/2 years. Since military separation he went back to the sawmill for about 30 years. He currently worked at a machine shop. He denied any recreational noise exposure. In regard to tinnitus, the Veteran reported that he has noticed his tinnitus since the military. He claimed it had worsened as he has aged.  The examiner opined that it was less likely as not that the Veteran’s hearing loss and tinnitus were due to his military service. 
The Board finds the Veteran’s statements regarding his in-service exposure to noise are cumulative of information that was already of record at the time of the prior final denial.  As the July 2014 VA opinion is negative, this evidence is not material to the nexus question presented in this case.  The Board therefore finds that the evidence submitted subsequent to the September 1991 rating decision does not constitute new and material evidence sufficient to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 
Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD).
The appellant has claimed service connection for PTSD.  The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  In compliance with the Court's holding, the issue on appeal is service connection for a psychiatric disorder, to include PTSD.
Review of the evidence of record reveals no findings of, or complaints of, or diagnoses of, any psychiatric disorder in the appellant's service medical treatment records.  The report of the appellant's January 1972 service separation examination indicates that the appellant was found to be psychiatrically normal.  
Review of the post-service private medical treatment records dated in 2011 also does not reveal any diagnosis of any psychiatric disorder, including PTSD.  A February 2011 review of systems recorded by a private radiation oncologist states that the appellant did not have any psychiatric complaints.  
The appellant was afforded a VA mental health examination in July 2014.  The examining psychologist stated that the appellant did not meet the criteria for the diagnosis of any psychiatric disorder, to include PTSD.
As previously indicated, "[I]n order to establish service connection or service-connected aggravation for a present 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, 1166-67 (Fed. Cir. 2004).  While the appellant contends that he has PTSD, review of the current medical evidence of record does not reveal any primary diagnosis of PTSD or any other psychiatric disorder.
None of the medical evidence of record establishes that the appellant had a chronic psychiatric disorder at any point during the pendency of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).  The most probative competent credible evidence supports finding that the appellant does not currently have a psychiatric disorder and that no chronic psychiatric disorder has been demonstrated at any time since he filed his claim for service connection in April 2014.  
Therefore, the appellant does not have a current psychiatric disability.  In the absence of proof of present disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  
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Thus, service connection for an acquired psychiatric disability, including PTSD, is not warranted.  As there is no evidence of a present psychiatric disability, to include PTSD, service connection is not warranted.
 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Hannan, Counsel  

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