Citation Nr: 1328879 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 13-21 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tinnitus, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for residuals of a right hand burn, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1949 to December 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that found new and material evidence had not been received sufficient to reopen the claims for service connection. In his May 2011 Notice of Disagreement the Veteran requested a hearing before a Decision Review Officer (DRO), but in a June 2012 statement he withdrew the request. Accordingly, the appellant's request for a hearing is considered to be withdrawn. 38 C.F.R. § 20.700 (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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). The issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An August 2009 Board decision denied service connection for bilateral hearing loss, tinnitus, and residuals of a right hand burn as the record did not establish that these disabilities were incurred in service. 2. Evidence received since the August 2009 Board decision for the Veteran's claims is not cumulative of the evidence of record at the time of the August 2009 denial, relates to unestablished facts necessary to substantiate the claims of service connection for bilateral hearing loss, tinnitus, and residuals of a right hand burn injury, and raises a reasonable possibility of substantiating these claims. 3. The Veteran does not have residuals of a right hand burn injury which were incurred in service. CONCLUSIONS OF LAW 1. The August 2009 Board decision denying service connection for a bilateral hearing loss disability, tinnitus, and residuals of a right hand burn is final. 38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). 2. Evidence received since the August 2009 Board decision is new and material and the Veteran's claims of entitlement to service connection for a bilateral hearing loss disability, tinnitus, and residuals of a right hand burn are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Residuals of a right hand burn were not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in March 2010. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Prior to the adjudication of petitions to reopen service connection claims, the Veteran must be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). This notice was provided in the March 2010 letter. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The RO attempted to obtain treatment records from the Washington, DC VA Medical Center (VAMC) in 2005. A response from the Washington, DC VAMC in April 2005 indicated that no treatment records were available. The Veteran was notified of this in April 2007. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. An examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination was not provided in conjunction with the Veteran's claim for residuals of a right hand burn, and, as discussed below, the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). In the present case, there is no competent evidence of record to support a finding that the Veteran has right hand burn residuals that are related to service. The Veteran himself has provided statements that he has right hand burn residuals that are related to service, and although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, residuals of a right hand burn, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion). Further, as discussed below, there is no competent, credible evidence of record to show that the claimed right hand burn actually occurred in service. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The Veteran has not satisfied all the elements of McLendon; therefore, VA is not required to provide him with a VA examination in conjunction with his claim. In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. New and Material Evidence Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2012). "[N]ew evidence" means evidence not previously submitted to agency decision-makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran's claims of entitlement to service connection for bilateral hearing loss, tinnitus, and residuals of a right hand burn were denied in an August 2009 Board decision. The Veteran did not appeal this decision and it is final. 38 U.S.C.A. §§ 7105, 7266. The evidence received since the August 2009 Board decision includes VA treatment records, the Veteran's statements, and VA and private medical opinions. Specifically, a May 2010 private opinion from the Veteran's audiologist stated that it was more likely than not that exposure to hazardous noise in the military contributed to his hearing loss and tinnitus. An April 2010 statement from the Veteran's VA physician opined that the decreased sensation in the Veteran's right hand may well have been a result of the burns he suffered in service. This evidence is new, as it was not previously of record at the time of the August 2009 Board decision. It is also material in that it helps to support the Veteran's contentions that his claimed disorders are related to service. Therefore, the claims are reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that during service the control tower he was in exploded and burned to the ground. As a result, he sustained third degree burns to his right hand and fingers. See April 2010 statement. The Board has reviewed the Veteran's service treatment records and notes that he was given a medical examination at entrance to service in December 1949. At this examination there was no evidence that the Veteran had any right hand disorder, to include nerve damage. The Veteran was treated in service for otitis media and mastoiditis and hospitalized for multiple episodes of epilepsy. See e.g., November 1953 Medical Board Report. At the Veteran's separation examination in September 1953, the only identifying body mark or scar was an appendectomy scar. The Veteran was given another separation examination one week later and again the only body mark or scar noted was the appendectomy scar. On these separation examination reports it was noted the Veteran blacked out on at least 3 occasions in service, however there is no evidence at either of these examinations that the Veteran reported a right hand burn or residuals of such. This evidence weighs against the Veteran's claim that he burned his right hand in service and has current residuals of this incident. The Veteran filed a claim of service connection in March 1954, four months after separation from service, for epilepsy and to receive a prescription for medication. He did not report having a right hand burn on this claim. This evidence weighs against his claim that he burned his hand in service and has had continuing residuals. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). For purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Id. Following separation from service there is minimal treatment for residuals of a right hand burn. In an April 2010 VA treatment record the Veteran reported burning his hand in service. He has reported that he was hospitalized in service after this injury. See August 2009 VA treatment record. In the April 2010 record the Veteran stated he did not realize this injury had caused any residuals until he had hot coffee spilled on his right hand in 2003 and he could not feel it. The April 2010 physician diagnosed the Veteran with decreased sensation of the right hand, dorsal aspect. In separate statements the Veteran has indicated that his right hand was burned when a tent stove exploded and flaming jet fuel went over everything inside the control tower where he was stationed. He was treated with Vaseline and his hand was wrapped in bandages. See April 2010 statement. A VA physician provided a statement also in April 2010 that the decrease in sensation of the Veteran's right hand "may well have been" a result of the burns he suffered in service in 1952. There is no further rationale for this opinion and as discussed below, it is not probative evidence in support of the Veteran's claim. In addition to the absence of documented post-service symptomatology related to his right hand for over 50 years, the evidence includes statements of the Veteran, his friends and family, asserting that his right hand was burned in service and he was unable to work for many weeks. See May 2005 statements. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, an absence of evidence of a disorder may not be considered substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The exception is "where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom" or if the fact would have normally been recorded. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Buczynski, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that the Veteran is competent to report that his hand was burned in service and that he experiences numbness and decreased sensation now. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its authority to weigh that testimony and to make a credibility determination. Here, the Board finds that the reported lay history of a right hand burn in service and subsequent residuals of the right hand burn, while competent, is nonetheless not credible. Emphasis is placed on the gap between discharge from active duty service, in 1953, and when the Veteran first noticed symptoms of numbness in 2003, almost 30 years after service separation. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). As noted above, the Board cannot make a determination that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, supra; Kahana, supra; Buczynski, supra. However, the Board can weigh the Veteran's service treatment records against the statements of the Veteran, his family, and his friends that he has residuals of a right hand burn that are related to service. The Veteran and his family and friends have provided statements that his right hand was burned in service when a stove exploded in the control tower where he was stationed. Although there are multiple references made in the service treatment records for other medical conditions, such as left ear problems and epilepsy, there is no objective evidence of either the control tower fire or the Veteran burning his right hand. It is unclear why there would be records of the Veteran's hospitalization for epilepsy, but no reference to treatment, or follow up, for third degree burns of the right hand. There was also no evidence on separation from service that the Veteran had previously burned his hand in service or that there were any residuals. The September 1953 separation examination noted pre-service conditions including a tonsillectomy, appendectomy, and pneumonia, and in service conditions including epilepsy, but no reference to a right hand burn in service is made. Further, the Veteran filed a service connection claim in March 1954 and did not mention a right hand burn. Unfortunately, this evidence weighs against the Veteran's claim that he burned his right hand in service. Accordingly, the Board finds the statements asserting an in service right hand burn and subsequent continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). As noted, the Veteran's physician provided a statement in April 2010 that the Veteran's right hand burns in service may have caused the current decrease in sensation in his right hand. There is no rationale for this opinion, nor does the Veteran's physician discuss the lack of objective evidence from a fire in service. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102 (noting that reasonable doubt does not include resort to speculation or remote possibility); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a doctor's statement framed in terms such as 'could have been' is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Jones, supra. As the physician stated the right hand burns "may well have" resulted in decreased sensation of the right hand, which is not a definitive opinion, the Board assigns this opinion little probative value. Furthermore, this opinion is based, at least in part, on an inaccurate factual premise, namely, the Veteran's report that he burned his right hand in service. As has been discussed, the Veteran's statements that he burned his right hand in-service and has current residuals are outweighed by the evidence of record. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for residuals of a right hand burn. The Board finds credible the Veteran's report that he currently experiences right hand numbness. However, there is no credible evidence indicating that this disorder is related to an in service incident. Accordingly, the Board concludes that the competent, probative evidence is against the claim of service connection for residuals of a right hand burn and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for residuals of a right hand burn is reopened; to this extent only, the appeal is granted. Entitlement to service connection for residuals of a right hand burn is denied. REMAND The Veteran contends that he has bilateral hearing loss and tinnitus as a result of in service noise exposure. While multiple opinions have been provided regarding the etiology of these conditions, the VA and private medical opinions are not sufficient. The April 2005 and May 2010 private examiners did not review service treatment records or discuss that the Veteran did not complain of hearing loss or tinnitus for many years after service. The June 2005 VA medical opinion stated that the Veteran had normal hearing on separation from service, when in fact he did not. With claims of service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner also did not discuss the Veteran's in-service diagnoses of chronic left ear otitis media and chronic left ear mastoiditis. Accordingly, a new examination is warranted. 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. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's bilateral hearing loss disorder and tinnitus. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this remand must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner must opine as to the following: a) Whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to service and b) Whether it is at least as likely as not that the Veteran's tinnitus is related to service. c) The examiner must take into account the Veteran's statements alleging noise exposure and all other relevant VA and private treatment records. The examiner should specifically review the November 1953 service treatment record noting diagnoses of otitis media and mastoiditis. The examiner should also review the separation examination audiometric findings. The examiner should review and interpret all in-service audiology examinations, converting any necessary findings from American Standards Association (ASA) to International Organization for Standardization (ISO) units. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any of the requested opinions without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). For example, no medical expert could provide the requested opinion because information from service or shortly thereafter is missing; current medical knowledge could yield many possible answers and/or opinions; the examiner lacks the expertise to render the requested opinion; or other testing is needed. 2. After the examination has been completed, the Agency of Original Jurisdiction (AOJ) must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs