Citation Nr: 0812432 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-09 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral hand disorder. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral leg disorder. 6. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to March 1974, with additional active duty for training (ACDUTRA) from May 1971 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The issues of entitlement to service connection for tinnitus and whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral hand disorder are addressed in the Remand portion of the decision below, and are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The evidence of record does not show a diagnosis of post- traumatic stress disorder (PTSD). 2. The veteran's service medical records show evidence of bilateral hearing loss for VA purposes at the end of the veteran's active duty for training in October 1971, but do not show evidence of bilateral hearing loss on service entrance examination in October 1972, or on service separation examination in March 1974 3. The evidence of record does not contain a current diagnosis of bilateral hearing loss. 4. An October 2003 Board decision denied service connection for a bilateral leg disorder. 5. The additional evidence received since the time of the final October 2003 Board decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral leg disorder. 6. An October 2003 Board decision denied service connection for a bilateral foot disorder. 7. The additional evidence received since the time of the final October 2003 Board decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral foot disorder. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Bilateral hearing loss was not incurred in, or aggravated by, active military service, nor can sensorineural bilateral hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 3. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral leg disorder is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral foot disorder is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims for service connection and to reopen finally decided claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claims, a letter dated in May 2004 satisfied the duty to notify provisions with respect to his claims for service connection and to reopen finally decided claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Although the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, a VA examination was not accorded the veteran in this case as none was required. See 38 C.F.R. § 3.159(c) (4). Moreover, VA is not required to obtain an examination for a claim to reopen a finally decided decision. See 38 C.F.R. § 3.159(c). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Claims Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the veteran's claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD varies depending on whether or not the veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); see also Doran v. Brown, 6 Vet. App. 283, 289 (1994). But if the veteran did not engage in combat with the enemy, or if the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and that testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Accordingly, service records or other corroborative evidence must substantiate or verify the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed inservice stressors. Cohen, 10 Vet. App. at 142. The veteran's service personnel records do not indicate combat service or any other overseas service, and do not show a combat military occupational specialty or awards or decorations indicative of combat. Moreover, the veteran's service medical records are negative for a diagnosis of or treatment for any psychiatric disorder. The Board finds that the evidence of record does not support a finding of service connection for PTSD, on the basis that there is no PTSD diagnosis of record. 38 C.F.R. §§ 3.304(f), 4.125(a); see also Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the veteran does not allege, and the evidence does not show, combat service. Cohen, 10 Vet. App. at 147. Moreover, the veteran did not provide VA with information regarding an alleged inservice stressor; the stressors he provided in December 2003 concerned postservice events. 38 C.F.R. § 3.304(f). Accordingly, service connection for PTSD is not warranted. Because there is no current diagnosis of PTSD, the preponderance of the evidence is against the veteran's claim for service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss In the case of sensorineural bilateral hearing loss, service connection may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes 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. 38 C.F.R. § 3.385. The evidence in this case reflects that bilateral hearing acuity was normal in April 1971 prior to ACDUTRA, but showed clinical findings of bilateral hearing loss for VA purposes at the end of his ACDUTRA in October 1971. However, normal bilateral hearing was again shown on service entrance examination in October 1972 and on service separation examination in March 1974. Specifically, prior to the veteran's active duty for training, a pre-enlistment examination was conducted in April 1971. At that time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 30 25 25 LEFT 25 25 30 20 15 The veteran's bilateral hearing was normal for VA purposes on service entrance in April 1971. 38 C.F.R. § 3.385. However, a hearing evaluation in October 1971, at the end of the veteran's ACDUTRA period, revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 35 35 LEFT 30 30 25 30 30 Thus, the clinical findings in October 1971 reflect bilateral hearing loss for VA purposes at the end of the veteran's ACDUTRA period. 38 C.F.R. § 3.385. The October 1972 hearing evaluation for service entrance revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 20 15 LEFT 10 10 15 20 15 The March 1974 hearing evaluation for service separation revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 30 15 LEFT 10 15 15 20 15 Comparison of these audiological examinations, to include those conducted on his entrance and separation both from ACDUTRA and from active service, indicates that with the exception of the October 1971 hearing evaluation, the veteran's hearing remained essentially the same or improved from the beginning of his 1971 ACDUTRA to the end of his active service. Moreover, the veteran's service medical records are completely silent as to any complaints of hearing loss, as is the postservice medical evidence of record. The veteran has not identified or submitted any private or VA evidence indicating that he currently experiences bilateral hearing loss meeting the VA criteria for a hearing loss disability under 38 C.F.R. § 3.385. Ultimately, there is no evidence of bilateral hearing loss on service separation in March 1974, no evidence of sensorineural hearing loss manifest to a compensable degree within one year of service separation, and no evidence of currently diagnosed bilateral hearing loss. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With no evidence of a current bilateral hearing loss disability for VA purposes, service connection is not warranted. Because the evidence does not show a current diagnosis of bilateral hearing loss, the preponderance of the evidence is against the veteran's claim for service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Claims Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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. See 38 C.F.R. § 3.156. Bilateral Leg Disorder The RO denied service connection for a bilateral leg disorder in January 2002, and notified the veteran of the decision that same month. An appeal was perfected, but denied by the Board in October 2003. That decision was not appealed, and is final. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 3.104. The matter under consideration in this case at that time was whether the veteran had a bilateral leg disorder that was related to his military service. In order for the veteran's claim to be reopened, evidence must have been presented or secured since the October 2003 Board decision which is relevant to, and probative of, this matter. The evidence of record at the time of the October 2003 Board decision relevant to the veteran's claim for service connection included the veteran's service medical records, private medical records dated from May 1987 to June 1987 and from July 1998 to September 1998, and VA outpatient treatment records dated from May 1991 to November 2001. The additional evidence added to the record since the October 2003 Board decision includes VA outpatient treatment records dated from December 2001 to March 2005. The Board denied the veteran's claim for entitlement to service connection for a bilateral leg disorder in October 2003, as there was no evidence that the veteran had a bilateral leg disorder that was related to his military service. However, March 2002 and May 2002 VA outpatient treatment records indicate evidence of bilateral knee degenerative joint disease. This evidence indicates a currently diagnosed bilateral knee disorder. Accordingly, as this evidence is "new," as it had not been previously considered by VA. However, it is not "material" as it does raises the reasonable possibility of substantiating the veteran's claim as it does not show that that the knee disorder is related to military service. Accordingly, the issue of entitlement to service connection for a bilateral leg disorder is not reopened. Bilateral Foot Disorder The RO denied service connection for a bilateral foot disorder in January 2002, and notified the veteran of the decision that same month. An appeal was perfected, but denied by the Board in October 2003. That decision was not appealed, and is final. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 3.104. The matter under consideration in this case at that time was whether the veteran had a bilateral foot disorder related to his military service. In order for the veteran's claim to be reopened, evidence must have been presented or secured since the October 2003 Board decision which is relevant to, and probative of, this matter. The evidence of record at the time of the October 2003 Board decision relevant to the veteran's claim for service connection included the veteran's service medical records, private medical records dated from May 1987 to June 1987 and from July 1998 to September 1998, and VA outpatient treatment records dated from May 1991 to November 2001. The additional evidence added to the record since the October 2003 Board decision includes VA outpatient treatment records dated from December 2001 to March 2005. The Board denied the veteran's claim for entitlement to service connection for a bilateral foot disorder in October 2003, and at that time, there was no evidence of a foot disorder related to his military service. A May 2004 VA outpatient treatment record notes that the veteran reported ongoing burning pain in the soles of his feet, for the last 1-2 years, with no known cause. The assessment, after physical examination, was peripheral neuropathy of the bilateral feet. This evidence indicates a currently diagnosed bilateral foot disorder. Accordingly, this evidence is "new," as it had not been previously considered by VA. However, it is not "material," as it does not raise the reasonable possibility of substantiating the veteran's claim as it does not show that the foot disorder is related to the veteran's military service. Accordingly, the issue of entitlement to service connection for a bilateral foot disorder is not reopened. ORDER Service connection for PTSD is denied. Service connection for bilateral hearing loss is denied. New and material evidence not having been submitted, the appeal to reopen the veteran's claim for entitlement to service connection for a bilateral leg disorder is denied. New and material evidence not having been submitted, the appeal to reopen the veteran's claim for entitlement to service connection for a bilateral foot disorder is denied. REMAND The veteran has claimed that he experiences bilateral tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Moreover, although his service and postservice medical records show no evidence of tinnitus, his service personnel records reflect that for at least part of his military service, the veteran served in an artillery unit. The "low threshold" criteria, as set forth in McLendon v. Nicholson, for finding that a VA examination is required are met in this case; thus, the issue of service connection for tinnitus must be remanded so that a VA examination can be conducted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board denied the veteran's claim for entitlement to service connection for a bilateral hand disorder in an October 2003 decision. This decision is final. 38 U.S.C.A. § 7104. To reopen a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 5108. The RO has not adjudicated whether the veteran has submitted new and material evidence to warrant reopening his claim for entitlement to service connection for a bilateral hand disorder. The veteran's original claim was simply for a bilateral hand disorder, and his November 2003 claim insisted that this condition was a residual of a cold injury in service. Thus, the veteran is essentially claiming two etiological theories for the same disability, a bilateral hand disorder. A claim for the same disability premised on two separate and distinct theories is the same claim, not a new claim. Compare Ashford v. Brown, 10 Vet. App. 120 (1997), with Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996), and Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008). To that end, the RO failed to notify the veteran, with regard to the issue of whether new and material evidence had been submitted to reopen the claims of entitlement to service connection for a bilateral hand disorder of any specific information and evidence needed to substantiate and complete his claim with regard to finality. Kent v. Nicholson, 20 Vet. App 1 (2006). This must be accomplished. Accordingly, the issues of entitlement to service connection for tinnitus and whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral hand disorder are remanded for the following actions: 1. The RO must review the last final rating decision with respect to the veteran's claim to reopen the issue of entitlement to service connection for a bilateral hand disorder. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Then, the RO must, as part of the notice letter discussed above, provide the veteran with a statement which sets forth the element(s) of service connection for which the evidence was found insufficient in the last final decision, describes what evidence would allow him to reopen his claims for entitlement to service connection for a bilateral hand disorder, to include as a residual of cold injury, and describes what evidence would be necessary to substantiate the element(s) required to establish service connection if the claim was to be reopened. Finally, as part of the notice letter discussed above, the RO must also provide the veteran with corrective notice, under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal. 2. The veteran must be afforded the appropriate VA examination to determine the etiology of any tinnitus found. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The VA examiner must state whether any tinnitus found is related to his military service. Information contained in the veteran's service personnel records, including his military occupational specialty, any objective medical findings in the service medical records, the postservice audiological evaluations currently of record, the veteran's history of inservice and postservice noise exposure, and any other pertinent clinical findings of record, must be taken into account. A complete rationale for all opinions must be provided. The report prepared must be typed. 3. The RO must notify the veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The RO should then readjudicate the issues of entitlement to service connection for tinnitus and whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a bilateral hand disorder. If any benefit on appeal remains denied, a supplemental statement of the case should be issued, to include all the pertinent law and regulations related to the requirements for reopening a previously denied claim. The veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs