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