Citation Nr: 1014599 Decision Date: 04/16/10 Archive Date: 04/29/10 DOCKET NO. 09-29 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left ear disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for schizophrenia. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for stomach ulcers. 5. Entitlement to service connection for a right ear disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from July 1944 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. 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). In August 2009 the Veteran withdrew his hearing request and in October 2009 his fiduciary confirmed this withdrawal. Therefore, adjudication of the appeal may go forward without scheduling the claimant for a hearing. The RO considered the right ear claim as a petition to reopen. However, this claim was never previously denied by the Board or the RO. In this regard, it is noted that the April 1961 Board decision denied entitlement to service connection for a left ear condition. As such, the Board has restyled the issue to reflect that it will be reviewed on a de novo basis. This characterization is beneficial not prejudicial to the Veteran as he is receiving a "fresh" look at his claim and is entitled to the full complement of VA's duty to notify and assist under the Veterans Claims Assistance Act (VCAA), provided he meet underlying regulatory requirements. A claim for a total rating based on individual unemployability (TDIU) was raised by the Veteran in an August 2009 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In an April 1961 decision, the Board denied service connection for a left ear disability. 2. In an April 2008 decision, the Board denied service connection for tinnitus and most recently denied the Veteran's applications to reopen his claims of service connection for schizophrenia and stomach ulcers. 3. Evidence received since the April 1961 and April 2008 Board decisions are cumulative of that previously of record. 4. The preponderance of the competent and credible evidence of record does not show that the Veteran was diagnosed with a right ear disability at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for a left ear disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156, 3.159, 3.303, 3.307, 3.309, 3.385 (2009). 2. New and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156, 3.159, 3.303 (2009). 3. New and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for schizophrenia. 38 U.S.C.A. §§ 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156, 3.159, 3.303, 3.307, 3.309 (2009). 4. New and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for stomach ulcers. 38 U.S.C.A. §§ 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156, 3.159, 3.303, 3.307, 3.309, 3.311 (2009). 5. A right ear disability was not incurred or aggravated during military service. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. As to applications to reopen, the United States Court of Appeals for Veterans Claims (Court) in Kent v. Nicholson, 20 Vet. App. 1 (2006), held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. Specifically, VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim. As to the applications to reopen and the service connection claim, the Board also finds that the written notice provided in December 2008, prior to the February 2009 rating decision, along with the written notice provided in March 2009 fulfills the provisions of 38 U.S.C.A. § 5103(a) including, as to the claims to reopen, notice of the specific elements required to establish service connection (to include the elements that were found insufficient in the previous denial as required by the Court in Kent, supra,) and, as to all the claims, notice of the regulations governing disability ratings and effective dates as required by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Furthermore, the Board finds that there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA has obtained and associated with the claims files all available and identified in-service and post-service records including the Veteran's records from the Lexington VA Medical Center. In this regard, while the record showed that the Veteran was in receipt of Social Security Administration (SSA) disability benefits at one time and the records are not found in the claims files, the Board finds that VA adjudication of the appeal may go forward without these records because in April 2006 the SSA notified VA that the Veteran's records had been destroyed and the Veteran and/or his fiduciary were notified that these records were not available in April 2006 and March 2007. As to the service connection claim for a right ear disability, while VA did not provide the Veteran with an examination, the Board finds that VA had no obligation to do so in connection with the current appeal because service treatment records and post-service treatment records are negative for a diagnosis of a chronic disorder. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that, if the evidence of record does not establish that the veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept a medical opinion that is based on the veteran's recitation of medical history); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (holding that VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Claims to Reopen The Veteran contends that his left ear disability, tinnitus, schizophrenia, and stomach ulcers were caused by his military service. It is also alleged that these disabilities were caused by his exposure to radiation while serving in Japan at the close of World War II. Lastly, it is requested that the Veteran be afforded the benefit of the doubt. The law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to give consideration to all of the evidence received since the April 1961 Board decision as to the left ear disability claim and consideration to all of the evidence received since the April 2008 Board decision as to the tinnitus, schizophrenia, and stomach ulcers claims in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disease processes, including a psychosis and peptic ulcers, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. § 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With hearing loss claims, VA may only find hearing loss to be a disability 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 are less than 94 percent. 38 C.F.R. § 3.385. With regard to radiation exposure, VA laws and regulations also provide service connection may be established not only on a direct basis under 38 C.F.R. § 3.303 and a presumptive basis under 38 C.F.R. §§ 3.307, 3.309(a) as outlined above, but on a presumptive bases under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d) and under 38 C.F.R. § 3.311. See Combee v. Brown, 34 F.3d 1039, 1043-5 (Fed. Cir. 1994). Specifically, if a veteran participated in service in a radiation-risk activity (as defined by statute and regulation) and, after service, developed one of the specifically enumerated cancers, it will be presumed that the cancer was incurred in-service. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Similarly, if a veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated diseases within a period specified for each by law, then his claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in-service. 38 C.F.R. § 3.311. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). With the above criteria in mind, the Board notes that since the April 1961 and April 2008 Board decisions denied the Veteran's claims, VA has received medical records and written statements in support of the claims from the Veteran and his representative. As to the medical evidence, they show the Veteran's continued post-service complaints and/or treatment for various psychiatric and gastrointestinal disorders as well as difficulty hearing. They also show for the first time his use of hearing aids. However, they do not show the Veteran being diagnosed with a left ear disability or tinnitus. 38 C.F.R. §§ 3.303, 3.385; McClain, supra. Moreover, they do not show the Veteran being diagnosed with a radiogenic disease. See 38 U.S.C.A. § 1112(c); 38 C.F.R. §§ 3.307, 3.309(d), 3.311. Likewise, they are negative for evidence which shows the Veteran had a compensable level of a psychosis and/or peptic ulcer in the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Similarly, the records do not show in-service treatment for the claimed disorders, demonstrate continuity of symptomatology for any of the claimed disorders, or include a medical opinion linking any of these post-service disorders to a disease or injury that occurred while on active duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Therefore, the Board finds that this additional evidence does not relate to an unestablished fact necessary to substantiate the claims because it does not show that the Veteran has a left ear disability, tinnitus, schizophrenia, and/or stomach ulcers due to his military service including due to his alleged radiation exposure. For this reason, this evidence is not new and material as it is cumulative of evidence previously considered. 38 C.F.R. § 3.156. As to the written statements from the Veteran and his representative, these statements amount to nothing more than their continued claims that the claimant has a left ear disability, tinnitus, schizophrenia, and stomach ulcers and these disabilities were caused by his military service including his alleged radiation exposure. These claims were, in substance, before the Board when it last decided the claims in April 1961 and April 2008. Then, as now, lay persons not trained in the field of medicine, to include the claimant and his representative, are not competent to offer an opinion regarding such medical questions as to whether the claimant has a current disability due to military service because such an opinion requires medical training which neither the claimant or his representative posses. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the newly received evidence tends to prove nothing that was not previously shown. That the Veteran and his representative continue to claim that the claimant has a left ear disability, tinnitus, schizophrenia, and stomach ulcers due to his military service is not new evidence within the context of 38 C.F.R. § 3.156. Without new and material evidence the claims may not be reopened. Therefore, the benefits sought on appeal are denied. Because the claimant has not fulfilled the threshold burden of submitting new and material evidence to reopen his finally disallowed claims, the benefit of the doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Claim for Service Connection The Veteran contends that he has a right ear disability due to his military service. It is also alleged that this disability was caused by his exposure to radiation while serving in Japan at the close of World War II. Lastly, it is requested that the Veteran be afforded the benefit of the doubt. Initially, the Board acknowledges that the record shows that the Veteran served in Japan at the close of World War II. Moreover, the Board finds that the Veteran is both competent and credible to report that he had had right ear problems, such as draining, pain, and hearing loss since that time. Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. However, the Board notes that service treatment records, including the August 1946 separation examination, are negative for a right ear disability and any radiogenic disease. 38 C.F.R. §§ 3.309(d), 3.311. In fact, the August 1946 separation examination specifically noted that he had no abnormalities of the ears and hearing was 15/15 on whispered voice testing. Likewise, while the post-service record shows the Veteran uses hearing aids, they are negative for a chronic right ear disability including any radiogenic disease. Id; 38 C.F.R. § 3.385. Moreover, to the extent the record shows the Veteran's complaints of right ear pain, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Furthermore, the Board does not find the Veteran's or his representative's assertions to be competent evidence of a current disability because as lay persons they do not have the required medical expertise to diagnose a specific and chronic disease process of the right ear because such a diagnosis requires medical expertise which they do not have. Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. In light of the above, the Board must conclude that the preponderance of the competent and credible evidence of record does not show the Veteran being diagnosed with a right ear disability at any time during the pendency of his appeal. See Hickson, supra; McClain, supra. Where there is no disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, entitlement to service connection for a right ear disability must be denied on a direct and presumptive basis. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.309(a), (d), 3.311; Combee, supra. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The application to reopen a claim of entitlement to service connection for a left ear disability is denied. The application to reopen a claim of entitlement to service connection for tinnitus is denied. The application to reopen a claim of entitlement to service connection for schizophrenia is denied. The application to reopen a claim of entitlement to service connection for stomach ulcers is denied. (CONTINUED ON NEXT PAGE) Service connection for a right ear disability is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs