Citation Nr: 1135167 Decision Date: 09/20/11 Archive Date: 09/23/11 DOCKET NO. 09-08 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for dermatitis or eczema. 7. Entitlement to an evaluation in excess of 30 percent for bilateral athlete's foot with callus formation. 8. Entitlement to compensation under 38 U.S.C.A. § 1151 for a low back injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service in the United States Army from November 1976 to October 1979. These matters come before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas, which denied entitlement to the benefits sought. In May 2011 a Board hearing was held at the RO before the undersigned; the transcript is of record. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there is evidence or allegation of unemployment or unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported that he has been unemployed since 1989 due to being disabled, however the Veteran has not contended and the record does not reflect that his unemployment is due to his service connected disabilities. He has specifically alleged his employment status is related to nonservice connected factors. As such, the issue of TDIU has not been raised by the record. The issues of service connection for dermatitis or eczema and an increased rating for tinea pedis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed January 2006 rating decision, the RO denied service connection for bilateral hearing loss on the grounds that no nexus to service was shown. The decision became final in January 2007. 2. Evidence received since the January 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection of bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 3. In an unappealed January 2006 rating decision, the RO denied service connection for tinnitus. The decision became final in January 2007. 4. Evidence received since the January 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection of tinnitus and raises a reasonable possibility of substantiating the claim. 5. At the May 2011 Board hearing the Veteran withdrew his claim for service connection for PTSD. 6. In May 2008 the Veteran tripped while stepping out of an elevator at a VA Medical Center (VAMC) that stopped approximately a foot above the floor and injured his low back. 7. A low back injury was not caused by VA hospital care, medical or surgical treatment, or examination, or by provision of training and rehabilitation services or work therapy program. CONCLUSIONS OF LAW 1. Evidence received since January 2006 is new and material and the criteria to reopen the previously denied claim of service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 2. Evidence received since January 2006 is new and material and the criteria to reopen the previously denied claim of service connection for tinnitus are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The criteria for withdrawal of a substantive appeal by the Veteran concerning the claim of service connection for PTSD have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2010); 38 C.F.R. § 20.204 (2010). 4. The criteria for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a low back disability have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal In October 2008 the Veteran submitted a notice of disagreement with the September 2008 rating decision which denied service connection for PTSD. In February 2009 the Veteran submitted his substantive appeal. This submission was sufficient to timely perfect his appeal as to the issue. At the May 2011 Board hearing, the Veteran stated that he wished to withdraw his appeal for service connection for PTSD. A substantive appeal may be withdrawn by the Veteran at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b). As the Veteran withdrew his appeal as to the issue of service connection for PTSD, there remain no allegations of error of fact or law for appellate consideration. The Board therefore has no jurisdiction to review this issue. Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With respect to the reopening of claims of service connection for tinnitus and bilateral hearing loss, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With regard to the remaining issue decided herein, entitlement to compensation under the provisions of 38 U.S.C.A. § 1151, a July 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Records covering the period during which the alleged injury occurred have been specifically requested and obtained. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). The Veteran was not provided with a VA examination as to the etiology of a low back disability for which he claims compensation under 38 U.S.C.A. § 1151. For reasons discussed in detail below, a medical opinion or current findings regarding any current low back disability are not necessary to the adjudication of the claim. 38 C.F.R. § 3.159(c). There is no indication in the record that any additional evidence, relevant to the issues decided, 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, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In a January 2006 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. The bases of the denials was that there was no nexus to service shown. In November 2007 the Veteran filed a new claim of service connection for bilateral hearing loss and tinnitus. Evidence received since the January 2006 RO decision consists of the Veteran's expanded testimony as to specific in service incidents and continuity of symptomatology. At the Board hearing the Veteran testified that following a field exercise he had ringing in his ears and hearing loss for a day and a half in service. The Veteran also testified that his hearing loss was now worse and the ringing in his ears was constant. The Veteran has reported that he has experienced both tinnitus and hearing loss since service. The Veteran is competent to report his symptoms, ringing in the ears and his decreased hearing ability, as this requires personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The credibility of his allegations is presumed for purposes of reopening. This evidence is new and material as it was not of record at the time of the last rating decision and it relates to a material element of the claim, that the Veteran experienced tinnitus and hearing loss in service, and that he has continued to experience these symptoms since. The information submitted since the last final rating decision constitutes new and material evidence and reopening the claim is warranted. 38 U.S.C.A. § 5108. Adjudication of the Veteran's claims does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claims. Compensation under 38 U.S.C.A. § 1151 The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable. 38 U.S.C.A. § 1151. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. The additional disability or death must not have been due to the Veteran's failure to follow medical instructions. 38 C.F.R. § 3.361(c)(3). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health- care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a Veteran's additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health-care provider would have foreseen. 38 C.F.R. § 3.361(d). In determining whether additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to the Veteran's condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. See 38 C.F.R. § 3.361(c)(1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In this case, the basis of the Veteran's claim is that he injured his low back when he fell while exiting an elevator at VAMC. The Veteran indicated that he tripped because the elevator stopped approximately a foot above the floor. His statements in this regard are credible and supported by the evidence, including an August 2008 witness statement. The Veteran was treated for a low back injury from the fall. However, even assuming that the Veteran was not at fault and that he suffered a low back injury from the fall out of the elevator, he is not entitled to compensation under 38 U.S.C.A. § 1151 for a low back injury because such additional disability was not 'caused by' VA hospital care, medical or surgical treatment, or examination. In Loving v. Nicholson, 19 Vet. App. 96 (2005), the Court addressed whether an injury sustained at a VA hospital from something other than medical treatment could be compensable under 38 U.S.C.A. § 1151. In that case, the Veteran suffered an injury during the course of a VA examination when a medical ceiling grate or panel fell on him. Id. at 98. The Court held that additional disability from this incident was not additional disability 'caused by VA hospital care, medical or surgical treatment, or examination,' and was therefore not compensable under 38 U.S.C.A. § 1151, because the injury was coincidental to the examination and was not caused by it. Id. at 100. In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of 'hospital care, medical or surgical treatment, or examination' furnished by VA. Id. at 101. In support of its holding, the Court cited Sweitzer v. Brown, 5 Vet. App. 503 (1993), in which the Court had affirmed a Board decision that denied 38 U.S.C.A. § 1151 benefits for a Veteran who had claimed that, while he was waiting for a VA examination, an unidentified patient in a motorized wheelchair struck him in the lower torso, and knocked him to the ground. Id. at 100 (citing Sweitzer, 5 Vet. App. at 504). The Court in Sweitzer held that 38 U.S.C.A. § 1151 contemplated recovery only for a disability resulting from the examination itself, and not for disability sustained while merely waiting in the building for an examination. Id. (citing Sweitzer, 5 Vet. App. at 505). The facts in this case are similar to those in Loving and Sweitzer. The Veteran has claimed, and the evidence shows, that a low back injury was caused by the fall out of the elevator. Such a fall does not provide a basis for recovery under 38 U.S.C.A. § 1151 because it was merely coincident to the Veteran's treatment at a VAMC and not part of the natural sequence of cause and effect flowing directly from the actual provision of VA care. The Veteran's claim for compensation for a low back injury are even less related to VA treatment than the claim in Loving which was found to be not compensable under 38 U.S.C.A. § 1151. The Veteran reports he was present in the hospital, living in the domiciliary, during drug rehabilitation; walking around the hospital was not part of a course of prescribed exercise or treatment for a disability. The preponderance of the evidence is against the claim for compensation under 338 U.S.C.A. § 1151 for a low back injury. There is no doubt to be resolved. Entitlement to compensation under 38 U.S.C.A. § 1151 is not warranted. ORDER New and material evidence having been submitted, the petition to reopen the claim for service connection for bilateral hearing loss is granted. New and material evidence having been submitted, the petition to reopen the claim for service connection for tinnitus is granted. The claim for service connection for PTSD is dismissed. Entitlement to compensation under 38 U.S.C.A. § 1151 for a low back injury is denied. REMAND Remand is required for compliance with VA's duty to assist the appellant in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Hearing Loss and Tinnitus The Veteran reports that he has experienced decreased hearing acuity and ringing in his ears since service. He also reports that he experienced acoustic trauma in service during a field exercise and that he had tinnitus and hearing difficulty during service as a result. The Veteran is competent to report as to symptomatology that he experiences. He is not, however, competent to render an opinion as to the etiology of his hearing loss and tinnitus, or to state that he currently meets the regulatory criteria defining hearing disability. The September 2005 VA audiological consultation merely evaluated the Veteran's condition and did not include a nexus opinion. Therefore an examination is required to determine whether the Veteran currently has bilateral hearing loss and tinnitus as defined in VA regulations, and to determine whether any of the diagnosed conditions are related to service. Skin Conditions The Veteran is currently service connected for a skin condition of the feet, athlete's foot with callus formation, rated 30 percent disabling. He is claiming service connection for an additional condition affecting other parts of his body. Both the evaluation and service connection question are before the Board. The Veteran's competent reports and current medical evidence establish the presence of widespread skin conditions affecting the trunk, neck, chest, back, legs and feet. VA examiners have not clearly stated whether the current skin condition of the feet is in fact the condition which was service connected, or if it is a manifestation of a different skin condition now affecting the rest of the body. Conversely, it is possible that the service connected condition of the feet has spread to other body parts. Remand is required to obtain current findings clearly identifying all current skin conditions and their relationship (if any) to service, and to define the extent of each identified condition. Updated VA treatment records may also be helpful in substantiating the claim, and should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records, from May 2011 forward, from the VAMC in Bonham, Texas, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record. 2. Schedule the Veteran for a VA audiology examination. The claims folder must be reviewed in conjunction with the examination. The examiner is to determine whether the Veteran currently has bilateral hearing loss and/or tinnitus. The examiner is to opine as to whether the Veteran's bilateral hearing loss and/or tinnitus, if any, were at least as likely as not caused or aggravated by service. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA skin examination. The claims folder must be reviewed in conjunction with the examination. The examiner should identify all currently diagnosed skin conditions of the feet and body. The examiner should opine as to: a) Whether any condition of the feet is a current manifestation of service connected athlete's foot with callus formation, or is a separate and distinct condition. b) Whether any currently diagnosed skin condition of the body is a manifestation of the service connected skin condition of the feet. The examiner should fully describe the current symptoms, extent and treatment for each diagnosed condition. Conditions of the feet and body (including and excluding the feet) should be described both separately and as a unitary condition. In other words, what percentage of the body surface is affected on the feet? What percentage of the whole body surface is affected by all skin conditions? What percentage of the body other than the feet is affected? If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the appropriate time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs