Citation Nr: 1334302	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  11-25 909	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for hepatitis C.

2.  Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for a psychiatric disorder, claimed as depression.  

3.  Entitlement to service connection for a psychiatric disorder, claimed as depression.

4.  Entitlement to service connection for nerve damage.

5.  Entitlement to service connection for a liver condition.

6.  Entitlement to service connection for bilateral hearing loss.

7.  Entitlement to service connection for tinnitus.

8.  Entitlement to service connection for tuberculosis.

9.  Entitlement to service connection for scars of the right eye, neck, and head.

10.  Entitlement to service connection for migraine headaches.

11.  Entitlement to a disability rating in excess of 30 percent for chronic maxillary sinusitis with sinus headaches.

12.  Entitlement to a compensable disability rating for dermatitis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from January 1969 to May 1972.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of December 2009 of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO reopened the Veteran's previously denied claim for entitlement to service connection for a psychiatric disorder; declined to reopen the Veteran's previously denied claim for entitlement to service connection for hepatitis C; denied the Veteran's claims for service connection; and declined to increase the Veteran's ratings for his service-connected disabilities.

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2013.  A transcript of the hearing is in the Veteran's file.

The issues of entitlement to service connection for a psychiatric disorder, tinnitus, and migraines, and entitlement to increased ratings for sinusitis and dermatitis 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.  Service connection for depression was denied in a March 2002 rating decision on the basis that there was no evidence that the Veteran currently suffered from this condition.  The Veteran did not initiate an appeal of this decision and it became final in March 2003.  

2.  Evidence received since March 2003 was not previously considered by agency decision makers, is not cumulative and redundant of evidence already of record, relates to an unestablished fact, and raises the reasonable possibility of substantiating the claim.

3.  The Veteran does not currently suffer from hearing loss for VA disability purposes.

4.  At his August 2013 hearing and in a letter of that same month, both received by the Board prior to the promulgation of a decision in the appeal, the Veteran notified VA that he requested a withdrawal of his appeal of the claims of whether new and material evidence had been submitted to reopen a claim for service connection for hepatitis C, and entitlement to service connection for nerve damage, a liver condition, tuberculosis, and scars.  


CONCLUSIONS OF LAW

1.  The criteria for reopening a previously denied claim of service connection for a psychiatric disorder have been met.  38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2013).

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013).

3.  The criteria for withdrawal of the claim of whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for hepatitis C have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

4.  The criteria for withdrawal of the claim of entitlement to service connection for nerve damage have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

5.  The criteria for withdrawal of the claim of entitlement to service connection for a liver condition  have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

6.  The criteria for withdrawal of the claim of entitlement to service connection for tuberculosis have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

7.  The criteria for withdrawal of the claim of entitlement to service connection for scars of the right eye, neck, and head have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

With regard to the Veteran's claim to reopen his previously denied claim for service connection for a psychiatric disorder, the Board is reopening the Veteran's previously denied claim and remanding it for further development; any discussion of the duties to notify and to assist is unnecessary.  

With regard to the claims the Veteran has withdrawn, no discussion of the duties to notify or to assist is necessary.  

With regard to the Veteran's claim for service connection for bilateral hearing loss, in his August 2013 hearing, the Veteran waived any error in the content or the timing of the notice he received.  No further discussion of the duty to notify on this claim is necessary.  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2).  VA examinations were conducted in February 2009 and April 2012, and a VA opinion was obtained in April 2012; the Veteran has not argued, and the record does not reflect, that these examinations and this opinion were inadequate for rating purposes.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  These examinations contain sufficient information to determine whether service connection for the Veteran's claimed bilateral hearing loss is warranted. 

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).

II.  New and Material Evidence

Service connection for a psychiatric disorder was denied in a March 2002 rating decision on the basis that there was no evidence that the Veteran currently suffered from a psychiatric disorder.  The Veteran did not initiate an appeal of this decision, and it became final in March 2003.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The 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).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996). 

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

Though much in the way of new evidence has been presented, only the most material is discussed here.  The Veteran underwent a VA examination in October 2009.  The examiner diagnosed him as suffering from both major depressive disorder and anxiety disorder, not otherwise specified.  VA treatment records similarly show that the Veteran currently suffers from a psychiatric disorder. 

Since this evidence was not before VA at the time of the Veteran's previous denial, it is new.  As it relates to an unestablished fact necessary to substantiate his claim (i.e., the current disability requirement), it is also material.  Reopening of the Veteran's claim for service connection for a psychiatric disorder is warranted.  

III.  Service Connection Claims

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

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 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).  

Competent lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1377.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The Veteran was exposed to noise during his active service.  The Veteran's service treatment records do not show that he complained of or received treatment for hearing loss during his active service.  His April 1972 separation examination did not diagnose him as suffering from hearing loss, nor was he found to have hearing loss for VA purposes or have any hearing loss greater than 15 decibels at any frequency between 500 and 4,000 Hertz (a loss of 25 decibels at 6000 Hertz was reported).  He did not complain of suffering from hearing loss on his April 1972 report of medical history at separation.  

That being said, the Veteran's DD-214 reflects that he served as a jet engine mechanic in the Air Force.  At his August 2013 hearing, the Veteran stated that he worked near the flight line during his active service.  Given his testimony and his military occupational specialty, despite the lack of any in-service complaints, it is conceded that the Veteran was exposed to noise during his active service.

The Veteran underwent a VA examination in April 2009.  The examination recorded pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
10
10
LEFT
15
10
10
15
20

The Veteran had speech recognition scores of 96 percent in the right ear and 94 percent in the left ear.  

The Veteran underwent a second VA examination in April 2012.  The examination recorded pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
15
15
LEFT
15
10
10
10
20

The Veteran had speech recognition scores of 96 percent in the right ear and 94 percent in the left.  

These examinations do not show that the Veteran's hearing has declined to the point to be considered disabling for VA purposes.  He did not have an auditory threshold at any frequency of 40 decibels or greater, he did not have auditory thresholds of 26 or greater at any frequency, and his speech recognition scores were 94 or above.  

There is no other medical evidence in the claims file that shows that the Veteran is diagnosed as suffering from hearing loss.  Both private and VA treatment records are silent for this diagnosis or for any hearing loss related treatment.  

The only evidence in support of the Veteran's claim for service connection for hearing loss is his own contentions that he currently suffers from this condition.  In both letters to VA and in his August 2013 hearing, the Veteran argues that he suffers from hearing loss that is causally related to his active service. 

The Veteran is competent to report functional complaints of hearing difficulty; however, he lacks the specialized knowledge, training, and equipment needed to establish the presence of hearing loss for VA purposes.  Jandreau, 492 F.3d at 1377.  To the extent that the Veteran's statements could be read as to show that he currently suffers from this condition, his statements are outweighed by the medical evidence of record showing that his hearing has not declined to the point to be considered disabling for VA purposes.  

The preponderance of the evidence is against the claim for service connection for hearing loss; there is no doubt to be resolved; and service connection for hearing loss is not warranted.  

IV.  Withdrawn Claims

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn by an appellant or an appellant's authorized representative in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204.

In both a written submission to VA and in his August 2013 hearing prior to the promulgation of the decision in the appeal, the appellant withdrew the appeal of the claims whether new and material evidence had been presented to reopen a previously denied claim of entitlement to service connection for hepatitis C, as well as the issues of entitlement to service connection for nerve damage, a liver condition, tuberculosis, and scars.  

No allegations of errors of fact or law remain for appellate consideration on these appeals.  Accordingly, the Board does not have jurisdiction to review the appeals and the appeals are dismissed.












ORDER

Reopening of the previously denied claim of entitlement to service connection for a psychiatric disorder is granted. 

Entitlement to service connection for bilateral hearing loss is denied.  

The claim of whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for hepatitis C is dismissed.

The claim of entitlement to service connection for nerve damage is dismissed.

The claim of entitlement to service connection for a liver condition is dismissed.

The claim of entitlement to service connection for tuberculosis is dismissed.

The claim of entitlement to service connection for scars of the right eye, neck, and head is dismissed.


REMAND

For various reasons, the Veteran's remaining claims must be remanded. 

First, with regard to the Veteran's claim for service connection for a psychiatric disorder, though the Veteran underwent a VA examination in October 2009, the examiner reported that he could not determine the etiology of the Veteran's psychiatric disorders without resorting to speculation.  The examiner's opinion is inadequate, and a new examination is required.  

Additional records must also be obtained.  A May 2005 VA treatment record notes that the Veteran was hospitalized in a VA facility in 2001 for major depression with psychotic features.  Records of this treatment have not been obtained.  Also, on his original October 2001 claim for service connection, the Veteran reported receiving psychiatric treatment during his active service, but records of this treatment have not been obtained.  An attempt to obtain these records must be undertaken.  

With regard to the Veteran's claim for service connection for tinnitus, the Veteran has undergone two VA examinations.  At his first in February 2009, the Veteran reported suffering from an occasional buzzing and humming in both ears that he described as moderate in loudness, lasting for a few minutes, and intermittent.  The examiner, however, did not diagnose the Veteran as suffering from tinnitus.  At his April 2012 examination, the examiner stated that the Veteran did not report suffering from tinnitus, and he denied any ringing, roaring, or buzzing sounds in his ears.  At his August 2013 hearing, however, the Veteran stated that he first began to suffer from tinnitus in 1971 (during his active service), and he stated that he suffers from this condition today.  A new examination to determine the status and etiology of the Veteran's claimed tinnitus is warranted.  

With regard to his claim for service connection for migraine headaches, the Veteran is already service-connected for sinusitis with headaches at a rate of 30 percent.  The Veteran contends, however, that he suffers from headaches apart from his sinusitis, and he contends that they are related to his in-service exposure to jet fuels.  Though the Veteran underwent a VA examination and the opinion from that examination was against his claim, the Veteran contends that new VA treatment records support his contentions.  On remand, these treatment records must be obtained, and he must be scheduled for a new examination.

Finally, with regard to the Veteran's increased ratings claims, in his August 2013 hearing, the Veteran argued that his conditions have worsened since his last examination.  As it has been 4 years since the Veteran was last examined, the Veteran must be scheduled for new examinations to determine the current severity of his service-connected disabilities.  




Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's complete VA treatment records, including all records dated from May 2009 and thereafter, as well as any psychiatric treatment from 2001.  

2.  With any necessary assistance from the Veteran, attempt to obtain records of the Veteran's claimed psychiatric treatment in 1971 at Laughlin Air Force Base in Del Rio, Texas. 

3.  Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

After examining the Veteran, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder is related to the Veteran's active service, including his in-service exposure to jet fuels and his involuntary separation.    

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

4.  Schedule the Veteran for a VA audio examination by an appropriate medical professional.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

After examining the Veteran, the examiner must state whether the Veteran currently suffers from tinnitus or whether he has suffered from this condition at any point during the pendency of his claim.  The examiner must also provide an opinion as to whether it is at least as likely as not that (a 50 percent or greater probability) that any diagnosed tinnitus is related to his active service, including his in-service noise exposure.  

5.  Schedule the Veteran for a VA neurological disorders examination by an appropriate medical professional.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

After examining the Veteran, the examiner must state from what headaches the Veteran currently suffers.  The examiner must also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed headache condition that is separate and apart from his service-connected sinusitis with headaches is related to his active service, including his in-service exposure to jet fuel.  

6.  Schedule the Veteran for a VA sinus examination by an appropriate medical professional.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

All pertinent symptomatology and findings must be reported in detail.  

7.  Schedule the Veteran for a VA skin examination by an appropriate medical professional.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

All pertinent symptomatology and findings must be reported in detail.  The examiner must also comment on whether the Veteran suffers from flare-ups of his service-connected skin condition, and if so, what percentage of his body or exposed area is affected during such times.  

8.  Then, readjudicate the appeal.  If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs