Citation Nr: 1303029	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  09-10 428	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for residuals of a neck injury.

2.  Entitlement to service connection for residuals of a left ear injury.

3.  Entitlement to service connection for residuals of a right knee injury.

4.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for Type 2 (adult-onset) Diabetes Mellitus, including as due to exposure to Agent Orange.

5.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a skin disorder, including as due to exposure to Agent Orange.

6.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for tremors, including as due to exposure to Agent Orange.

7.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for loss of teeth, including as due to exposure to Agent Orange.

8.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran had active military service from September 1967 to September 1970.

This appeal to the Board of Veterans' Appeals (Board) is from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the claims of service connection diabetes mellitus, loss of teeth, a skin disorder, and tremors; denied initial claims of entitlement to service connection for residuals of injuries to the left ear, right knee and neck; and denied a TDIU.

Because the claims for service connection for diabetes mellitus, a skin disorder, tremors, and loss of teeth have been previously considered, denied, and not timely appealed, there has to be new and material evidence to reopen these claims and warrant further consideration of them on their underlying merits.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 

In the March 2009 substantive appeal (on VA Form 9), the Veteran indicated he wanted a videoconference hearing before a Veterans Law Judge of the Board, but he later withdrew his hearing request in August 2011.  38 C.F.R. §§ 20.700(e), 20.704(e) (2012).

Some of the Veteran's records are in his electronic ("Virtual VA") file, but they, too, have been considered in deciding his claims.


FINDINGS OF FACT

1.  There is not credible evidence the Veteran sustained injuries to his neck, left ear, or right knee during his military service.

2.  There is not clear and unmistakable evidence he had a right knee disorder that pre-existed his military service.

3.  The competent and credible evidence of record shows he did not have a neck injury during his service or cervical spine arthritis within the first post-service year, and his current neck disorder is not otherwise shown to be related to his service.

4.  The competent and credible evidence of record shows he did not have injuries to his left ear or right knee during his service and that he currently does not have a left ear disorder, including hearing loss, or a right knee disorder. 

5.  An unappealed rating decision in September 2004 denied service connection for diabetes mellitus type 2 based on findings that there was no basis for establishing a nexus (link) between the claimed disability and the Veteran's military service.

6.  Evidence added to the claims file since that September 2004 rating decisions is cumulative or redundant of evidence previously considered, does not relate to unestablished facts necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim.

7.  An unappealed rating decision in August 2002 denied service connection for loss of teeth, a skin disorder, and tremors based on findings that there was no basis for establishing a nexus between the claimed disabilities and the Veteran's military service.

8.  Evidence added to the claims file since that August 2002 rating decisions is cumulative or redundant of evidence previously considered, does not relate to unestablished facts necessary to substantiate the claims of service connection for loss of teeth, a skin disorder, and tremors, and does not raise a reasonable possibility of substantiating these claims.

9.  The Veteran's only service-connected disability is residuals of a fractured right middle finger, which has been rated as 10-percent disabling effectively since May 2000.

10.  The most probative (competent and credible) medical and other evidence of record indicates he is not incapable of obtaining and maintaining substantially gainful employment on account of service-connected disability.


CONCLUSIONS OF LAW

1.  Disabilities claimed as residuals of injuries to the neck, left ear, and right knee are not due to disease or injury incurred in or aggravated by his military service and may not be presumed to be.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The September 2004 rating decision that denied service connection for diabetes mellitus type 2 is final and binding.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.1103 (2012). 

3.  New and material evidence has not been received since that September 2004 decisions to reopen this claim of service connection for diabetes mellitus type 2.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

4.  The August 2002 rating decision that denied service connection for a skin disorder, tremors, and loss of teeth is final and binding.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.1103 (2012).

5.  New and material evidence has not been received since that August 2002 decision to reopen these claims of service connection for a skin disorder, tremors, and loss of teeth.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

6.  The criteria are not met for a TDIU.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 4.15, 4.16, 4.18, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and any medical or lay evidence that is (1) necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Also, when the claim is for service connection, the notice should address all five elements of the claim:  1) Veteran status, 2) existence of a disability, 3) a relationship between the disability and military service, but also the "downstream" 4) disability rating and 5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

Moreover, as concerning petitions to reopen previously denied, unappealed, claims, the Court has held that, because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by 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 the evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  So, to this end, VA must both notify the claimant of the reasons the claim was previously denied and of the type of evidence and information needed to establish entitlement to the underlying benefit being requested, service connection.  See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).

Ideally, VCAA notice should be provided before initially adjudicating a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even if shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing there is a VCAA notice error, such as in timing or content, but, moreover, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of his claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Here, the September 2004, April 2007, and May 2007 letters provided the Veteran with notice of VA's duties to notify and assist him in the development of his claims consistent with the applicable laws and regulations.  These letters informed him of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, and the assistance that VA would provide to obtain information and evidence in support of his claims.  He was also given general notice of assigned disability ratings and effective dates of awards.  Also, specifically regarding the need to submit new and material evidence, the September 2004 letter provided legally sufficient notice of the basis for previous denials of the claims and informed him of what was needed to reopen the claims.  He therefore has received all required VCAA notice concerning his claims.  Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received.  Thus, absent this pleading or showing, the duty to notify has been satisfied. 

VA also made reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims.  His service treatment records (STRs) are associated with the claims file and VA has obtained all pertinent/identified post-service VA and non-VA treatment records that could be obtained.  All evidence constructively of record has been secured.  

At one time the Veteran's personnel records were associated with the claims file, but they became separated from the main file and they are no longer available.  An April 2009 VA Memorandum details the actions taken to locate the records and contains a formal finding that theses records are unavailable.  The Veteran was informed of this in correspondence dated that same month and asked to submit copies of his personnel records if he had them in his personal possession.  He did not respond to this request or submit the requested copies.  Notably, pursuant to his request and before the records became unavailable, he was given copies of his personnel records in May 2008.  Since appropriate steps were taken to obtain copies of these records and the efforts were unsuccessful, a remand to obtain these records would serve no useful purpose and cause unnecessary delay.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (citing Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)).

The Veteran was not afforded VA examinations to determine the nature and etiology of the claimed disabilities of the neck, left ear, and right knee because none are required.  As explained in the decision below, VA and private treatment records associated with the claims file do not show that the Veteran currently has disabilities of the left ear and right knee.  The Veteran is shown to have a current neck disorder, but there is no indication of a neck problem in service or evidence that suggests his current neck disorder is related to his military service.  The earliest indication of a neck problem was in 1990, which was 20 years after he separated from service.  Under these circumstances, an examination is not required.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2) , the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability).  Thus, a VA compensation examination with a medical opinion is not needed to fairly decide these claims.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4).

Concerning his claims for diabetes mellitus, tremors, a skin disorder, and loss of teeth, because there is not new and material evidence since the prior, final and binding denials of these claims, the Board is not obligated to provide VA compensation examinations for medical nexus opinions concerning these claims unless these claims are reopened.  See 38 C.F.R. § 3.159(c)(4)(iii).  

An opinion is not necessary regarding the TDIU claim because there is no evidence that suggests his service-connected finger disability renders the Veteran unable to secure and maintain employment.

As there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met.  38 U.S.C.A. § 5103A. 


II. Service Connection

A.  Legal Criteria

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306.

To establish entitlement to direct service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain diseases like arthritis and sensorineural hearing loss are considered chronic conditions and, therefore, will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101,1112, 1113 38 C.F.R. §§ 3.307, 3.309(a).

A second presumption involves Veterans who were exposed to herbicides, such as Agent Orange, during service.  If a Veteran was exposed to an herbicide agent during service, certain diseases, such as respiratory cancers (including cancer of the lung, bronchus, larynx, or trachea), are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e).  (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6)(i).)

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(6)(iii).  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id.  An opinion of VA's General Counsel held that service on a deep-water naval vessel off the shores of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A).  And the Federal Circuit Court since has clarified that service in the Republic of Vietnam requires service on the landmass of Vietnam or inland waterways.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525).

The Department of Defense (DOD) also has determined that herbicide agents were used from April 1968 through July 1969 in or near the DMZ in Korea to defoliate the fields of fire between the front line defensive positions and the south barrier fence.  A final rule, with an effective date of February 24, 2011, amends the regulations to allow for a presumption that Veterans who served in a unit that, as determined by DOD, operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during the period between April 1, 1968, and August 31, 1971, shall be presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that a Veteran was not exposed to any such agent during service.  See 76 Fed. Reg. 4245 -50 (Jan. 25, 2011).


Units in the area during the period of use of herbicides included the following units of the 7th Infantry Division:  1st Battalion, 17th Infantry; 1st Battalion, 31st Infantry; 1st Battalion, 32nd Infantry; 2nd Battalion, 10th Cavalry; 2nd Battalion 17th Infantry; and 2nd Battalion, 31st Infantry.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.

If it is determined that a Veteran who served in Korea from April 1968 to July 1969 belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply.  See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block k.  If a Veteran instead either belonged to a different unit located in Korea during this time period, or served in one of the units identified by DOD between September 1, 1967 and August 31, 1971, but not during 1968 or 1969, then herbicide exposure will represent a factual determination to be established on a case-by-case basis.  See VA Adjudication Procedure Manual, M21-1 MR, Part VI, Chapter 2, Section B, Topic 6, Block d. 

So entitlement to service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be shown by demonstrating:  (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  

Notation of a condition during service does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, although prong (3) in the three-part test above for continuity of symptomatology does not necessarily require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Residuals of a Neck Injury

The Veteran contends that he has a current neck disorder that is the residual of a neck injury in service.  

There is no dispute that the Veteran had a current neck disorder.  Post-service treatment records contain diagnoses of cervical spine degenerative disc disease (DDD) and degenerative joint disease (DJD).  See January 1992 and February 1994 treatment records.  

The Board has first considered whether service connection for arthritis is warranted on a presumptive basis.  It is not shown by the record that the Veteran had cervical spine arthritis (degenerative joint disease) within the first year of his discharge from service nor the required minimum compensable degree of being at least 10 percent disabling.  Arthritis must be objectively confirmed by X-rays.  38 C.F.R. § 4.71a, Code 5003 (2012).  There were no complaints until many years after service and 
X-ray evidence was first detected in February 1994.  Therefore, the Board may not presume he had arthritis of his cervical spine within the required one year of his discharge from service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

The record also does not contain sufficient evidence to establish the occurrence of an in-service neck injury, as alleged by the Veteran, or of a nexus between the current cervical spine disorder and service.

The Veteran has not provided any information regarding the alleged in-service neck injury or the current disability involved.  In the substantive appeal he stated that he would argue his contentions at his hearing, but since he withdrew his hearing request and has provided no further information, the record lacks any specific information regarding his alleged in-service injury.  In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b) (2012); 38 C.F.R. § 3.304(d).  Although the Veteran served during the Vietnam era, his only overseas duty was in Korea.  He is not shown to have engaged in combat (his military occupational specialty (MOS) was Material Control and Accounting Specialist) and he has not asserted combat service, therefore, the provisions of 38 U.S.C.A. § 1154(b) do not apply.

It is well established that a Veteran is generally competent to report that he had an in-service, which in this case is a neck.  See Jandreau, supra.  However, his assertion is neither credible nor probative.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  The Veteran failed to provide even general information about the alleged neck injury.  In particular, he did not discuss the circumstances surrounding the injury such as the time period of the neck injury, whether he was treated or not in service for the neck injury, or even the nature of the neck injury.  


The Veteran's service treatment records were also considered in determining whether there was any support in his assertion that he had an in-service neck injury.  His service treatment records are completely silent for complaints, findings, or a diagnosis of a neck injury.  In particular, induction and separation examinations show no abnormality.  These records are more probative than the Veteran's current contentions as to the matter of whether he had a neck injury in service since they are contemporaneous records generated in service by those in a position to identify medical problems.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran long after the fact). 

Post-service medical records concerning to the claimed neck disorder also tend to contradict rather than support the Veteran's assertion of an in-service injury.  Medical records show that the Veteran's complaints of neck pain date back to 1990.  See January 1991 private treatment record.  Despite the long history of private and VA treatment from that point forward, the Veteran did not report having an in-service injury associated with his current neck disorder.  His earliest report of a neck injury is found in the July 2000 VA examination and noted that he had an old history of injury to the neck.  Significantly, there was no specific information regarding the injury as to whether it was an in-service or post-service injury.  It is also noteworthy that a June 1984 VA treatment record documents his military history and shows that he denied having any injuries in service.  Thus, it is virtually impossible to find credible lay evidence of an injury when not even the most basic elements of the injury are provided and the medical evidence in service and post service indicates a neck injury was not incurred in service.  Therefore, the more probative evidence establishes that the Veteran did not have a neck injury during his military service.

The Veteran has not submitted nor does the record contain any competent evidence sufficient to establish a nexus between any currently diagnosed cervical spine disorder and an event or incident of his service.  The fact that cervical spine findings are not shown in service or in post-service treatment records until decades after separation from service is a significant factor that weighs against the claim of service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 

For these reasons, a preponderance of the evidence is against a finding that the Veteran's current neck disorder is due to any event or injury in service.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

Residuals of a Left Ear Injury

The Veteran contends that he has current residuals of a left ear injury.  Since he did not serve in combat, the relaxed evidentiary provisions of 38 C.F.R. § 1154(b) do not apply.  

The Veteran did not did not provide any information on the alleged in-service left ear injury or the nature of the current left ear disorder.  Due to the lack of specificity, the Board will take a broad view of the claim and consider acoustic trauma as well as an injury to the ear itself.  

The Veteran's service treatment records show that his hearing was normal at the time of the induction examination.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
/
20
LEFT
20
15
25
/
20

Since service department records prior to October 31, 1967 used the American Standards Association (ASA) unit and the Veteran's induction examination was in July 1967, the above findings have been converted from ASA standards to the current standards set forth by the International Standards Organization (ISO).


His separation examination revealed that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
/
5
LEFT
5
5
5
/
5

The Veteran's service treatment records are also silent for any evidence of a left ear injury.  The absence of complaints, findings, or diagnosis of any left ear problem in service is more probative than contentions made many years later.  See Curry, supra.  The Veteran also denied having any injuries during military service.  See the June 1984 VA treatment record.  For these reasons, the medical evidence of record is more credible and probative as to the matter of an in-service left ear injury.  Accordingly, the evidence the Veteran is not found to have had a left ear injury in service.

The first and perhaps most fundamental requirement for any service-connection claim is there must be competent and credible evidence confirming the Veteran has the claimed disability - or that he at least has since filing the claim.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, irrespective of whether it is attributable to his military service; without this minimum level of proof, there can be no valid claim because, without this required proof of current disability, there necessarily is no current disability to relate or attribute to his military service).

Here, his MOS is not one that denotes acoustic trauma and the evidence does not show that the Veteran had a hearing loss disability, as defined in 38 C.F.R. § 3.385, in service or any time thereafter.  There is also no evidence of any other form of left ear disorder.


Despite a substantial amount of treatment records associated with the claims file that date back to 1984, there is no evidence of a left ear disorder in any post-service records.  On July 2000 general medical VA examination, the Veteran's ears were normal.  A May 2006 VA medical record also indicates the Veteran's hearing was intact.  The only indication of an ear problem during the course of the appeal was documented in June 2009.  At that time, the Veteran reported having pain on the posterior ear area when bending over or working with his head bent down for a while.  No finding or impression was associated with his complaints.

While there is documented evidence of ear pain made 39 years after the Veteran separated from service, there is no evidence of underlying pathology.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom; Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.") 

Furthermore, the lengthy period between service and the earliest complaints involving an ear problem itself weighs against a claim of service connection.  Maxson, supra.  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

This is not one of the situations when the Veteran's lay testimony, alone, is sufficient to establish he has this claimed disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (indicating medical evidence is not always or categorically required when the determinative issue involves medical diagnosis or etiology, but rather that such issue may, depending on the facts of the case, be demonstrated by competent and credible lay evidence under 38 U.S.C.A. § 1154(a)).  See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (indicating the Veteran did not have this competence in a claim for rheumatic fever).  Since the Veteran did not allege left ear hearing loss or identify the nature of his left ear disorder, his assertions regarding a current disability have little probative value when considered alongside the other competent evidence of record.

For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a left ear injury.  In the absence of a current left ear disability, the claim must be denied.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Residuals of a Right Knee Injury

The Veteran contends he has a current right knee disorder that is the residual of an in-service right knee injury.  However, there is no credible or probative evidence that supports his assertion and the relaxed evidentiary provisions of 38 C.F.R. § 1154(b) do not apply.

The Veteran's service treatment records include an induction medical history report that shows he reported having a prior right knee sprain injury at the age of 17.  However, on induction examination his lower extremities were found to be normal.

A Veteran is presumed in sound condition when entering service except for defects "noted" when examined and accepted for service.  If there was no such notation, then clear and unmistakable evidence that the disability (1) existed prior to service and (2) was not aggravated by service is needed to rebut this presumption of soundness.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003).  Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b).  To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). 


According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports.  The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began.  See 38 C.F.R. § 3.304(b)(1) (2012).  Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  Id.  

Given that the Veteran reported a right knee sprain prior to service but there were no findings of a right knee disorder on his induction examination, the presumption of soundness attaches.  There is no clear and unmistakable evidence of record to rebut this presumption.

The Veteran's service treatment records contain no complaints, findings, or diagnosis of a right knee problem in service and his separation examination shows that his lower extremities were normal.  

One of the earliest indications of a right knee problem is found 27 years post-service in a September 1997 VA medical certificate that documents the Veteran's complaints that his right knee felt like it would give way.  No history was provided regarding the right knee and a diagnostic impression was not offered.  He is also shown to have right knee complaints in March 2001 and more recently in a June 2009 VA treatment record.  No information other than the severity of his pain is noted. 

The fact that his induction and separation examinations show that his lower extremities were normal and there were no complaints in service or for many years after tends to support a finding that there was no pre-existing condition rather than rebut the presumption of soundness.


Regarding the Veteran's contention that he had an in-service right knee injury, his service treatment records do not document an injury and he denied having any in-service injuries in a June 1984 VA treatment record.  The service treatment records and the 1984 VA treatment record are more probative in determining whether the Veteran had an in-service knee injury than assertions he made many years later in connection with his claim.  See Curry, supra.  

On this record, there are no objective findings of a right knee disorder and complaints of right knee pain alone is insufficient to establish the presence of a disability.  See Sanchez-Benitez v. West, supra.  

The Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a right knee injury.  In the absence of a right knee disorder at any time during the appeal, the claim for service connection must be denied.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

III.  New and Material Evidence

A decision of the RO becomes final and binding and not subject to revision on the same factual basis unless a Notice of Disagreement (NOD) is filed within one year of the notice of the decision.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. §§ 5108, 7105(c); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  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.  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).

In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium); but see, too, Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). 

The Court rather recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  In Shade, the Court stated that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.


A.  Diabetes Mellitus

The RO initially considered and denied the claim for service connection for diabetes mellitus type 2 in an August 2002 rating decision and then again in a September 2004 rating decisions after additional development was undertaken.  The Veteran was also properly notified of the September 2004 decisions in a letter dated that same month.  This rating decision, therefore, is final and binding based on the evidence then of record.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012).

The RO denied this claim because there was no evidence that diabetes mellitus was incurred in or aggravated by service.

The evidence of record at the time of the September 2004 rating decision, which is the most recent final denial, include the Veteran's service treatment records, VA treatment records, and private treatment records.  The service treatment records contain no complaints, findings, or diagnosis of diabetes mellitus type 2.  Private treatment records dated from 1989 to 2000 indicate the initial diagnosis of diabetes mellitus was made in 1988.  See the January 1989 private treatment record.  VA treatment records from 1989 to 2002 also reflect a diagnosis of diabetes mellitus.

The Veteran asserted that in the course of his duties he was exposed to nerve gas and that he had direct contact with chemicals used to kill foliage.  He was also exposed to chemicals while working along the demilitarized zone (DMZ) in Korea.  See the November 2003 statement.

Copies of a few service personnel records were associated with the claims file that consist of extracts and a copy of a meal card that show he was in Korea and part of the 51st Signal Battalion, Company D.

Since the Veteran served overseas during the Vietnam era in Korea but not Vietnam, the RO also researched the Veteran's contention that he was in the DMZ while stationed in Korea.  Compensation and Pension conference calls show that he was in Korea at the time herbicides were used, but that his unit, the 51st Signal Battalion, Company D, was not in the affected area.  Field Artillery, Signal and Engineer troops were supplied as support personnel as required, but more specific information was not available.  See the March 2003 Compensation and Pension Manager's Conference Call.  A specific request for documents showing herbicide exposures yielded a negative result.  See the October 2001 request.

Evidence received since the September 2004 denial includes VA medical records that show ongoing treatment for diabetes mellitus.  The RO already acknowledged he had diabetes mellitus type 2 when the claim was previously denied in September 2004.  Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records merely describing the Veteran's current condition are not material to issue of service connection and are not sufficient to reopen a claim for service connection based on new and material evidence.).  Hence, the evidence is cumulative.

There is no significant difference in the Veteran's current contentions as he continues to allege herbicide exposure in Korea.  Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence).  See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); and see, as well, Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.).

To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim.  The basis for the RO's prior final denial of this claim was essentially that there was no medical evidence of record demonstrating that the Veteran's diabetes mellitus was incurred or aggravated during his military service, and to this end there was no evidence corroborating his assertions of a relationship of this disability with his service, including the alleged exposure to Agent Orange and other harmful chemicals.  So, in effect, the RO found the weight of the evidence against a causal link to service.

The medical evidence added to the record since September 2004 does not indicate an onset of the claimed disability in service or address the etiology of the Veteran's diabetes mellitus in terms of its relationship to his military experience and specifically to exposure to Agent Orange.  Since evidence of this nature was not been added to the record since the September 2004 denial, the evidence does not related to an unestablished fact necessary to substantiate this claim and it does not raise a reasonable possibility of substantiating this claim.  In short, there has been nothing added to the record that would trigger VA's duty to provide further assistance.  Hence, new and material evidence has not been received.  38 C.F.R. § 3.156(a).  Inasmuch as the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

B.  Tremors

The RO initially considered and denied this claim of service connection for tremors in an August 2002 rating decision.  The Veteran was also properly notified of this decision in a letter dated that same month.  This rating decision therefore is final and binding based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103.

The RO denied this claim because there was no evidence of that the claimed disability was incurred in or aggravated by service.

The evidence of record at the time of the unappealed August 2002 rating decision includes the Veteran's service treatment records, VA treatment records, and private treatment records.  The service treatment records contain no complaints, findings, or diagnosis related to tremors.  Private treatment records from 1990 to 1995 and VA treatment records from 1998 to 2001 first note complaints of head bobbing in November 1998 and worsening tremors in March 2000.  A July 2000 VA neurological examination indicates the Veteran had a 1 year history of hand tremors.  He reported that he was told this was related to diabetes mellitus.  The examiner diagnosed essential tremors. 

The Veteran claimed that his tremors were due to exposure to Agent Orange in service, but the RO found that there was no official record of his alleged herbicide exposure.

Evidence received since the August denial includes private treatment records and VA medical records.  These records show a diagnosis and treatment for tremors.  See an October 1993 private treatment record and a January 2008 VA treatment record.  Although the possible etiology of the Veteran's tremors was discussed, the medical professional merely reported the Veteran's concerns and gave no indication if there was any basis to his assertions that the tremors were caused by exposure to nerve gas.  See VA treatment records in April 2002, March 2004.  An attending VA physician in January 2008 also discussed the etiology of the Veteran's tremors and stated there was no conclusive evidence that showed any relationship between his tremors and Agent Orange or nerve gas.

The record already contained evidence that the Veteran had tremors when the claim was previously denied in August 2002.  Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records merely describing the Veteran's current condition are not material to issue of service connection and are not sufficient to reopen a claim for service connection based on new and material evidence.).  Hence, additional evidence of this nature is redundant and cumulative of evidence previously considered.

There is no significant difference in the Veteran's current contentions as he continues to allege herbicide exposure.  Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); and see, as well, Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.).

To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim.  The basis for the RO's prior final denial of this claim was essentially that there was no medical evidence of record demonstrating that the Veteran's tremors were incurred or aggravated during his military service, and to this end there was no evidence corroborating his assertions of a relationship of this disability with his service, including the alleged exposure to Agent Orange.  Essentially, the RO found the weight of the evidence against a causal link to service.  

The medical evidence added to the record since August 2002 does not indicate an onset of the claimed disability in service and does not suggest a positive etiological relationship between tremors and the Veteran's service.  Indeed, the evidence provides further negative evidence against the etiology of the tremors in the context of its relationship to his military experience and specifically to exposure to Agent Orange or nerve gas.  As service onset of the disability or positive nexus evidence has not been added to the record since the August 2002 denial, the evidence does not related to an unestablished fact necessary to substantiate this claim and it does not raise a reasonable possibility of substantiating this claim.  The Board concludes that evidence has not been added to the record that would trigger VA's duty to provide further assistance.  Hence, new and material evidence has not been received.  38 C.F.R. § 3.156(a).  Inasmuch as the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

C.  Skin Disorder

The RO initially considered and denied this claim in an August 2002 rating decision.  The Veteran was also properly notified of this decision in a letter dated that same month.  This rating decision therefore is final and binding based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.

The RO denied the claim of service connection for a skin because there was no evidence that a skin disorder was incurred in or aggravated by service.

The evidence of record at the time of the unappealed August 2002 rating decision include the Veteran's service treatment records, VA treatment records, and private treatment records.  The service treatment records include a June 1970 induction examination that revealed no skin abnormality and the associated medical history report is also negative for skin complaints or diagnosis.  During service, however, the Veteran had a few episodes of skin problems beginning with a blister on his right foot that was noted in October 1967.  He next had a cystic lesion in July 1968, which was again reported in September 1968.  The Veteran reported it had been growing more rapidly and the diagnosis was dermatofibroma.  In April 1970, he had a rash on his face.  

Private treatment records from 1990 to 1995 show that he had cysts on his face in June and August 1991. VA treatment records from 1998 to 2001 show evidence of skin lesions and that he had complaints of periodic blisters.  See November 2008 and March 2001 VA treatment records.  On July 2000 VA general medical examination he was shown to have seborrheic keratosis on his chest.  

The Veteran claimed that his skin disorder was due to exposure to Agent Orange in service, but the RO found that there was no official record of his alleged herbicide exposure.

Evidence received since the August 2002 denial includes private treatment records and VA treatment records.  The private medical records and VA treatment records show diagnoses and treatment for skin disorder.  See June 1984, September 1997, February 1998 VA records and a June 1991 private treatment record.  The record already contained evidence that the Veteran had skin disorder when the claim was previously denied in August 2002.  Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records merely describing the Veteran's current condition are not material to issue of service connection and are not sufficient to reopen a claim for service connection based on new and material evidence.).  

Although the VA treatment records reflect earlier treatment than what was considered previously, the treatment was still many years after the Veteran separated from service.  Hence, additional evidence of this nature is redundant and cumulative of evidence previously considered.

The Veteran's current claim was for chloracne with residual scars, a claim for a particular disability may reasonably encompass more than the specific disability will include general symptoms and descriptions of the disability.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  Therefore, the earlier and more general claim for a skin disorder encompassed the current claim for a more specific skin disorder.  Furthermore, there is no significant difference in the Veteran's current contentions he continues to allege herbicide exposure.  Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); and see, as well, Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.).

To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim.  The basis for the RO's prior final denial of this claim was essentially that there was no medical evidence of record demonstrating that the Veteran's skin disorder was incurred or aggravated during his military service, and to this end there was no evidence corroborating his assertions of a relationship of this disability with his service, including the alleged exposure to Agent Orange.  Essentially, the RO found the weight of the evidence against a causal link to service.


The medical evidence added to the record since August 2002 rating decision does not address the etiology of the Veteran's skin disorder in terms of its relationship to his military experience or specifically to alleged exposure to Agent Orange.  As evidence of this nature has not been added to the record since the August 2002 denial, the evidence does not related to an unestablished fact necessary to substantiate this claim and it does not raise a reasonable possibility of substantiating this claim.  No evidence has been added to the record that triggers VA's duty to assist the Veteran.  Hence, new and material evidence has not been received.  38 C.F.R. § 3.156(a).  Inasmuch as the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

D.  Loss of Teeth

The RO initially considered and denied this claim in an August 2002 rating decision.  The Veteran was also properly notified of this decision in a letter dated that same month.  This rating decision therefore is final and binding based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103.

The RO denied the claim of service connection for loss of teeth because there was no evidence that the claimed disability was incurred in or aggravated by service.

The evidence of record at the time of the unappealed August 2002 rating decision include the Veteran's service treatment records, VA treatment records, and private treatment records.  The service treatment records show that at the time of induction teeth numbers 1, 16, 18, 19, 20,30, and 32 were already missing.  A July 1979 dental record does not show any additional missing teeth.  Private treatment records from 1990 to 1995 do not relate to missing teeth.  VA treatment records from 1998 to 2001 show that the Veteran had a loss of teeth in March 2001, but the specific teeth were not noted.  The July 2000 VA general medical examination only notes that the Veteran's teeth were in good repair.  

The Veteran claimed that his loss of teeth was due to exposure to Agent Orange in service, but there was no official record of his alleged herbicide exposure.

Evidence received since the August 2002 denial includes private medical records and VA treatment records.  None of these records contain information that was not already considered or of record.  In this regard, a June 1984 VA treatment record shows that the Veteran had "many missing teeth".  The record already contained evidence that the Veteran had missing teeth when the claim was previously denied in August 2002.  Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records merely describing the Veteran's current condition are not material to issue of service connection and are not sufficient to reopen a claim for service connection based on new and material evidence.).  Hence, evidence of this nature is duplicative and cumulative of evidence previously considered.

There is no significant difference in the Veteran's current contentions as he continues to allege herbicide exposure.  Bostain v. West, 11 Vet. App. 124  1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); and see, as well, Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.).

To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim.  The basis for the RO's prior final denial of this claim was essentially that there was no medical evidence of record demonstrating that the Veteran's missing teeth were incurred or aggravated during his military service, and to this end there was no evidence corroborating his assertions of a relationship of this disability with his service, including the alleged exposure to Agent Orange.  In effect, the RO found the weight of the evidence against a causal link to service.

The medical evidence added to the record since August 2002 does not indicate that the Veteran had additional teeth missing during or since service and does it not address the etiology of the Veteran's missing teeth in terms of its relationship to his military experience or specifically to exposure to Agent Orange.  As evidence of this nature has not been added to the record since the August 2002 denial, the evidence does not related to an unestablished fact necessary to substantiate this claim and it does not raise a reasonable possibility of substantiating this claim.  In other words, no evidence has been added to the record that would trigger the need for VA to provide further assistance.  Hence, new and material evidence has not been received.  38 C.F.R. § 3.156(a).  Inasmuch as the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

IV.  TDIU

A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Id.  

In addition, a TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet these applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).  In this latter situation, however, the Board could not grant the TDIU in the first instance, instead, would have to refer the matter to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for this special consideration.  See Fanning v. Brown, 4 Vet. App. 225 (1993).  See also Barringer v. Peake, 22 Vet. App. 242 (2008) (indicating that, although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record).

Thus, the Board must determine whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify granting a TDIU.  Consideration instead is given to the Veteran's level of education, special training, and previous work experience.  38 C.F.R. §§ 3.340, 3.341(a), 4.19. See also Van Hoose v. Brown, 4 Vet. App. 361 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). 

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  As further observed by VA's General Counsel , "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for [a] TDIU because of 'subjective' factors that the 'objective' rating does not consider."  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).


While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...."

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment," noting the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a).  

Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100 percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed incapable of performing the physical and mental acts required by employment, and is not based solely on whether he is unemployed or has difficulty obtaining employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  See, too, 38 C.F.R. §§ 4.1, 4.15.  Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.

In May 2007, the Veteran asserted that he was unable to maintain any type of employment due to his claimed disabilities.  As discussed above, service connection has been denied for his claimed disabilities, therefore, the focus is on his 
service-connected right middle finger disability and only this disability.  

Since the Veteran's only service-connected disability is rated 10 percent disabling, the percentage requirements of 38 C.F.R. § 4.16(a) are not met that the Board must now consider whether referral under 38 C.F.R. § 4.16(b) is warranted.  

The Veteran's indicates that he last worked in 2000 and the he is not currently working.  He completed high school and four years of college.  

The record does not show nor does the Veteran allege that he is unemployable due to his service-connected right middle finger disability.  The VA treatment records from 2006 do not contain any complaints of findings regarding this disability that suggest the disability renders him unemployable.  Indeed, the majority of impairment in the right hand is related to the nonservice-connected tremors.  As examples, he reported difficulty holding a spoon or cup in July 2006 and difficulty using a pen  in February 2007 due to tremors.  No impairment was reported regarding his middle right finger.

The record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  Id.  The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment.  In this particular instance, there is no evidence that the Veteran is precluded or restricted from all forms of employment that may be considered substantially gainful due to his service-connected disability.  See Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992); Beaty v. Brown, 6 Vet. App. 532, 537 (1994). 


The Veteran has not submitted supporting evidence of unemployability based on the current service-connected disability and there is no evidence that this disability, alone, precludes all forms of substantially gainful employment.  Under these circumstances, referral to the Compensation and Pension Director is not warranted and the claim is denied.


ORDER

Service connection for residuals of a neck injury is denied.

Service connection for residuals of a left ear injury is denied.

Service connection for residuals of a right knee injury is denied.

The appeal regarding whether new and material evidence has been received to reopen the claim for service connection for diabetes mellitus type 2 is denied.

The appeal regarding whether new and material evidence has been received to reopen the claim for service connection for a skin disorder is denied.

The appeal regarding whether new and material evidence has been received to reopen the claim for service connection for tremors is denied.

The appeal regarding whether new and material evidence has been received to reopen the claim for service connection for loss of teeth is denied.

Entitlement to a TDIU is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs