Citation Nr: 1301185 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10 23-986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for Raynaud's syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to June 1955. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and April 2010 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. Although the Veteran requested a hearing before a Veterans Law Judge at the RO in his May 2010 substantive appeal, he withdrew this request in September 2011. As such, the Board finds that there are no outstanding hearing requests. See 38 C.F.R. § 20.704 (2012). With regard to the Veteran's claim of entitlement to service connection for bilateral hearing loss, a review of the record reveals that this issue was previously denied by the Board in November 2007. The Veteran did not appeal the November 2007 Board decision, and hence, it is final. 38 U.S.C.A. § 7104 (West 2002). Thus, new and material evidence is necessary to reopen this claim and consider it on the merits. See 38 C.F.R. § 3.156 (2012). Furthermore, regardless of the RO's actions (i.e., whether it reopened the Veteran's claim), it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). The Board has therefore characterized the issue on appeal as set forth on the title page. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. This Virtual VA claims file has been reviewed. The issue of entitlement to service connection for Raynaud's syndrome is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A November 2007 Board decision that denied service connection for bilateral hearing loss was not appealed and is final. 2. No new evidence associated with the claims file since the November 2007 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, or raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2007 Board decision denying the claim of service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The evidence received since the November 2007 Board denial is not new and material, and the criteria for reopening the claim of service connection for bilateral hearing loss are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, in an October 2009 pre-rating letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, to include the need to submit new and material evidence, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. While the letter cited to the wrong decision, the substance of the letter advised the Veteran of the basis for the prior denial of his claim as well as what constitutes new and material evidence necessary to reopen the claim. Hence, any error was harmless. Conway v. Principi, 353 F.3d 1369, 1374 (Fed.Cir. 2004). Moreover, VA provided the appellant with a copy of an April 2010 rating decision and provided full notice of the Board's November 2007 decision. Finally, the October 2009 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. As for VA's duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records identified by the Veteran including service records as well as post-service medical evidence (i.e., VA and non-VA outpatient treatment records). The Board acknowledges that the Veteran was not afforded a VA examination in connection with his claim to reopen a claim of service connection. However, as will be discussed below, no such examination or medical opinion is required in this appeal as the Board finds that new and material evidence has not been associated with the file since the prior denial. See 38 C.F.R. § 3.159(c)(4)(iii) (2012). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. Conway, 353 F.3d at 1374. Analysis The Board has reviewed all the evidence in the Veteran's claims file and his electronic, paperless Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim herein decided and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). At the outset, the Board notes that the Veteran's service treatment records are unavailable, as the National Personnel Records Center (NPRC) reported that the records may have been destroyed in a fire at that facility in 1973. Moreover, VA's efforts to search for alternative records were unsuccessful. In this regard, by letter dated in February 2010, the RO notified the Veteran of the unavailability of his service treatment records and requested that he provide additional information and/or evidence which might aid in reconstructing his service record and/or substantiating his claim for service connection. Although the Veteran replied to this request, he indicated that he did not seek treatment for hearing loss during service. Thus, there were no alternative records to search. Regardless, the Board points out that there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as this, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's claim of service connection for bilateral hearing loss was most recently denied in a November 2007 Board decision. The evidence of record at the time of that decision included statements by the Veteran that he had been exposed to significant noise without hearing protection throughout service. Written correspondence associated with the claims file reflects that the Veteran reported being exposed to weapons fire (specifically, 105 howitzers) while serving in an artillery unit during the Korean War. He also indicated exposure to M1 rifle noise on firing ranges and explosives noise while in the combat engineers. The earliest medical evidence of record pertaining to the Veteran's hearing was an October 2000 private audiological evaluation which showed a bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385 (2012). Accompanying this audiogram was a report by a private audiologist diagnosing the Veteran with "mild to high frequency sensorineural hearing loss which is probably age-induced." In support of his claim, the Veteran submitted letters from his VA primary care physician (dated in June 2002 and June 2003) which indicated that he "probably has hearing loss" that is "associated" with his military career in the artillery. Additionally, there was various medical treatise information regarding noise-induced hearing loss. Finally, a June 2004 VA examination report discussed an examination of the Veteran at which it was noted that he reported experiencing temporary hearing loss during service with chronic hearing loss becoming noticeable approximately seventeen years earlier. Following the examination and a review of the claims file, the examiner opined that there was insufficient evidence to establish a nexus between the Veteran's hearing loss and service because the configuration of such loss was more constituent with presbycusis (or age-related hearing loss). In its November 2007 decision, the Board acknowledged the Veteran's lay assertions regarding his hearing loss. It also discussed the competency and credibility of the medical opinions provided by the Veteran's primary care physician as well as the medical treatise information submitted in support of his claim. In denying the claim, however, the Board noted that the medical opinions provided by the audiologists significantly outweighed the more speculative opinions of the VA primary care physician. Additionally, while acknowledging the medical treatise information as competent evidence with regard to general etiology for hearing loss, the Board found that such evidence lacked specific conclusions that the Veteran's hearing loss is due to service. In sum, the Board concluded that the record preponderated against finding that a bilateral hearing loss was related to the Veteran's military service, to include due to acoustic trauma, and that service connection was therefore not warranted. Although notified of the Board's November 2007 that same month, the Veteran did not initiate an appeal. The Board's November 2007 denial of this claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.302, 20.1100. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In May 2009, the Veteran filed to reopen his previously denied claim of service connection for bilateral hearing loss. The provisions of 38 C.F.R. § 3.156(a) define 'new' evidence as evidence not previously submitted to agency decisionmakers and 'material' evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). In the instant appeal, the last final denial of the claim is the Board's November 2007 decision. Additionally, for purposes of the 'new and material' analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Here, additional evidence has been associated with the claims file since the November 2007 Board decision that pertains to the Veteran's claimed bilateral hearing loss. Such evidence includes duplicate medical treatise information that was previously of record at the time of the November 2007 decision. Also associated with the claims file are additional VA treatment records which show continued treatment for bilateral hearing loss, including hearing aids. With the exception of the duplicative medical treatise information, the Board finds the foregoing evidence is 'new' in that it was not before previous decisionmakers. However, this evidence is not 'material' for purposes of reopening the claim for service connection because it does not relate to the basis for the prior final denial - i.e., evidence that the Veteran's hearing loss is related to military service. As for the Veteran's newly-submitted lay statements regarding military noise exposure and lay assertions that his hearing loss is related to service, these statements and assertions were before VA at the time of the prior decision. Moreover, with regard to the latter statements, laypersons without appropriate medical training and expertise are not competent to render a competent opinion on a medical matter, to include the matter of a medical etiology of hearing loss. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, where, as here, resolution of the appeal turns on a medical matter, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998). Under these circumstances, the Board concludes that the criteria for reopening the claim of service connection for bilateral hearing loss are not met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence to reopen the claim for service connection for bilateral hearing loss has not been received, the appeal is denied. REMAND The Veteran contends that he is entitled to service connection for Raynaud's syndrome. Specifically, it is his assertion that this disease is related to an alleged episode of frostbite suffered by his hands while serving with the 439th Engineer Battalion at Inchon, Korea, and with the 49th Field Artillery at the 38th Parallel. In statements received during this appeal, the Veteran indicated that he experienced frostbite on his hands while a member of both units as he was exposed to below zero temperatures without cold weather clothing or gloves. He alleges that no medical attention was provided for frostbite during service. As noted above, the Veteran's service treatment records are not available for review as they were likely lost in a 1973 fire at the National Personnel Records Center. On review of the claims file, however, the record contains a number of medical opinions linking the Veteran's Raynaud's disease, diagnosed in 2004, to frostbite and/or military service. First, a May 2009 VA primary care note indicates that "frost bite [sic] could cause [Raynaud's]." Similarly, a May 2009 letter from private physician Dr. Lamberts states that the Veteran's Raynaud's "could be related to his frostbite and cold exposure [while serving in Korea in the 1950s]." A May 2010 letter from another private physician, Dr. Baer, indicates that it "is at least as likely as it is not" that the Veteran's Raynaud's is due to the initial trauma of frostbite to the hands suffered while in Korea. Finally, a May 2010 letter from Dr. Lamberts states that it the Veteran's Raynaud's "is at least as likely as not caused by military service following episodes of frostbite when he was on active duty." Pertinent to the current remand, the above medical opinions are insufficient upon which to award service connection. Specifically, such opinions are either expressed in speculative terms (i.e., could cause) or lack any discussion or explanation of what information was used to reach the conclusion that it is as least as likely as not that the Veteran's Raynaud's syndrome is related to military service. Under these circumstances, the Board finds that further examination with a medical opinion is warranted to address whether any diagnosed Raynaud's syndrome is related to the Veteran's military service, to include cold weather exposure. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Prior to obtaining an examination, to assist the examiner in providing an opinion, the RO/AMC should conduct appropriate research regarding the average temperatures experienced by the 439th Engineer Battalion (in Inchon, Korea) and by the 49th Field Artillery (at the 38th Parallel (Demilitarized Zone)) during the winter months of 1954-55. Such research should also include, if possible, any information regarding the incidence of frostbite among troops serving in this area during this period of time. Any requests for information, along with any responses (positive or negative) must be clearly documented in the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact appropriate source(s) to obtain information regarding the average temperatures experienced by the 439th Engineer Battalion (in Inchon, Korea) and by the 49th Field Artillery (at the 38th Parallel (Demilitarized Zone)) during the winter months of 1954-55. Such research should include, if possible, any information regarding the incidence of frostbite among troops serving in this area during this period of time. Any requests for information, along with any responses (positive or negative) must be clearly documented in the claims file. 2. After any information is obtained in conjunction with the above request, schedule the Veteran for a VA cold weather examination to determine the nature and etiology of any diagnosed Raynaud's syndrome. Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review. The examiner must identify any current residuals of Raynaud's syndrome. Then, the examiner is to opine whether it is at least as likely as not that the disorder is related to active military service or events therein, to include exposure to cold weather while serving in Korea during the winter months of 1954-55. A complete rationale for any opinion expressed must be provided. The examiner is to consider all relevant evidence, to include any lay statements of record regarding exposure and frostbite symptoms, and the multiple medical opinions of record (dated in May 2009 and May 2010) that specifically address a possible link between the Veteran's Raynaud's and service. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. 3. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of his remaining 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 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issue remaining on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs