Citation Nr: 1005071 Decision Date: 02/03/10 Archive Date: 02/18/10 DOCKET NO. 09-32 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for the residuals of cold injuries. 3. Entitlement to service connection for the residuals of skin cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from June 1948 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO's August 1996 decision denying the Veteran's claim of service connection for tinnitus was not appealed, and is therefore final. 2. Evidence received since the August 1996 final decision relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus and raises a reasonable possibility of substantiating the claim. 3. The Veteran's tinnitus has been causally related to his service-connected bilateral hearing loss. 4. The Veteran does not have any currently diagnosed cold injury residuals. 5. The Veteran's skin cancer did not manifest during, or as a result of, his active military service. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The August 1996 rating decision denying service connection for tinnitus is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302 (2009). 2. New and material evidence having been received, the Veteran's claim of entitlement to service connection for tinnitus is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2009). 4. The criteria for entitlement to service connection for cold injury residuals have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.102, 3.303, 3.307, 3.309 (2009). 5. The criteria for entitlement to service connection for skin cancer residuals have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U. S. ___ (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the Veteran with such notice in a June 2008 letter. Nonetheless, since the Board is reopening this claim, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless. Regarding the Veteran's claims of entitlement to service connection, the duty to notify was satisfied by way of letters sent to the Veteran in June 2008 and September 2008 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letters also provided the Veteran with the Dingess requirements (specifically, how disability ratings and effective dates are assigned). See 19 Vet. App. at 484. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. In this case, no examination is necessary in order to adjudicate the claims of entitlement to service connection for skin cancer and cold injury residuals. Regarding the claim of skin cancer, there is no evidence to satisfy the third McLendon criteria discussed above. Namely, there is no evidence of an in-service disease or injury. A medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. In reference to the Veteran's claim of cold injury residuals, there is no evidence of a current diagnosis of such a disorder, and as such, the first McLendon criteria has not been satisfied. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records. Also, the Veteran received a VA medical examination for his tinnitus in December 2008, and VA has obtained these records and the records of the Veteran's outpatient treatment with VA. Copies of the Veteran's private medical records have also been obtained and incorporated into the record. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Relevant Laws and Regulations In December 2008, the RO reopened the claim of service connection for tinnitus. As previously discussed, irrespective of the RO's actions, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for tinnitus. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. 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). 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 v. Brown, 9 Vet. App. 273 (1996). 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). Facts and Analysis The Veteran was denied service connection for tinnitus in an August 1996 rating decision. The RO denied the Veteran's claim because there was no evidence demonstrating that the Veteran's tinnitus manifested during, or as a result of, his active military service. Therefore, for the evidence to be material in this case, it must address this unestablished fact. The Veteran indicated in his June 2008 claim for service connection that he suffered from tinnitus. The Veteran contended that it was related to his service aboard the USS Boxer, where he was exposed to noise while working to launch and recover fighter jets. As a lay person, the Veteran is competent to testify regarding matters that are subject to lay observation, such as in-service noise exposure and the symptoms of tinnitus. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran did not make such a contention at the time of the August 1996 rating decision, and as previously noted, the credibility of the evidence, but not its weight, is to be presumed when determining whether new and material evidence has been submitted. Justus, 3 Vet. App. at 513. Therefore, the Board concludes that the Veteran's testimony regarding in-service noise exposure is new and material evidence. As such, the Veteran's claim of entitlement to service connection for tinnitus is reopened. (CONTINUED ON NEXT PAGE) Entitlement to Service Connection Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2009). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Tinnitus Having determined that new and material evidence has been submitted to warrant the reopening of the claim, the Board will now consider whether tinnitus may be granted, either as directly related to service or as secondary to service- connected disability. In this regard, while a recent VA examiner concluded that the Veteran's tinnitus was not likely related to service, a February 2004 VA examiner previously found after noting the Veteran's hearing loss, that it was not uncommon to have tinnitus with sensorineural hearing loss and a history of noise exposure, and that tinnitus was often secondary to sensorineural hearing loss. In addition, while not specifically stating that the Veteran's tinnitus was related to his hearing loss, in the context of the examiner's diagnosis, the Board finds that a reasonable interpretation of the examiner's comments is that he finds that the Veteran's tinnitus is causally related to his service- connected hearing loss. Moreover, there is no medical opinion of record that contradicts the February 2004 examiner's opinion. Therefore, the Board will give the Veteran the benefit of the doubt, and conclude that service connection is warranted for tinnitus as secondary to service- connected bilateral hearing loss. 38 C.F.R. § 3.310 (2009). Cold Injuries The Veteran contends that he is entitled to service connection for cold injury residuals. However, as outlined below, there is no evidence of record demonstrating that the Veteran has ever been diagnosed with any residuals due to exposure to cold. As such, service connection is not warranted. The Veteran's service treatment records are silent as to any treatment for diseases or injuries resulting from exposure to cold temperatures. There are also no findings of cold injuries or residuals of cold injuries in the Veteran's May 1952 separation examination report. When there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). In this case, the Veteran's post-service medical records do not indicate that the Veteran has ever complained of, or been treated for, residuals of cold exposure. There is no medical evidence of record suggesting that the Veteran has a current diagnosis of such a disorder either. There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). Without a medical diagnosis of residuals due to exposure to cold temperatures, the Board must deny the Veteran's claim. See 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). The Board recognizes that the Veteran believes he suffers from residuals due to cold exposure. In his June 2008 claim, the Veteran reported suffering residuals of exposure to subzero temperatures while serving in the Navy. However, as a lay person, the Veteran is not competent to diagnose himself with a medical condition. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). The competent medical evidence of record does not demonstrate that the Veteran has ever been diagnosed with cold injury residuals. Since 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 cold injury residuals must be denied. Skin Cancer The Veteran contends that he is entitled to service connection for skin cancer. However, the preponderance of the evidence of record demonstrates that the Veteran's skin cancer did not manifest during, or as a result of, active military service. As such, service connection is not warranted. The Veteran's service treatment records do not demonstrate that the Veteran was treated for skin cancer or any other disorder of the skin, to include a sunburn, during his active military service. According to the Veteran's May 1952 separation examination, the Veteran's skin, head, face, neck, and scalp, were normal at the time of separation from active duty. There was no mention of any residuals due to sun exposure. As such, the Veteran's service treatment records do not demonstrate that the Veteran suffered from a disease or injury of the skin during his military service. Again, if there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The Veteran's post-service treatment records do not demonstrate that the Veteran has suffered from chronic symptomatology of a skin condition since his separation from active duty. The record contains private medical records spanning from July 1987 to October 1995. None of these records indicate that the Veteran was diagnosed with skin cancer, or treated for any skin condition, during this time period. The first evidence of skin cancer is a private surgical note dated October 2003. The Veteran was noted to have a diagnosis of a basal cell carcinoma on the left side of his nose. Surgery was then performed to excise the carcinoma. This is the first evidence of treatment for or a diagnosis of skin cancer in the record. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the absence of any medical evidence of treatment for skin cancer for approximately 51 years after separation from service tends to establish that the Veteran has not suffered from chronic symptomatology of a skin disorder since his separation from active duty. Subsequent treatment records demonstrate that the Veteran underwent another surgery in March 2008 to excise a squamous cell carcinoma. Surgery was again performed in July 2008 for the excision of a squamous cell carcinoma on the neck. None of these records suggest any potential relationship between the Veteran's recent diagnoses of skin cancer and his military service some 50 years earlier. In fact, the record contains no medical evidence at all relating the Veteran's skin cancer to military service. Based on the above evidence, the Board concludes that the Veteran is not entitled to service connection for the residuals of skin cancer. There is no evidence of this disability during the Veteran's military service. Rather, the first evidence of this disability is more than 50 years after the Veteran's separation from active duty. The Board recognizes that the Veteran has been diagnosed with, and treated for, skin cancer on a number of occasions in the last few years. However, a current diagnosis of a disorder is not in and of itself sufficient for service connection. There must also be evidence of a disease or injury in military service, and, medical evidence relating the Veteran's current disability to his military service. Hickson v. West, 12 Vet. App. 247, 252 (1999). In the present case, there is no evidence of a disorder in service and no medical evidence suggesting a possible relationship between the current diagnosis and military service. The Board recognizes that the Veteran believes his skin cancer is related to numerous sunburns experienced during his service in the Navy. However, as already discussed, a lay person is not competent to offer a medical opinion, including one regarding the etiological onsets of a currently diagnosed disability. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). As such, the Veteran's etiological opinion is of no probative value in this case. Since 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 skin cancer residuals must be denied. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for cold injury residuals is denied. Entitlement to service connection for skin cancer residuals is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs