Citation Nr: 1336015 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-28 282 ) 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 to reopen the previously denied claim of entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for nerve compression syndrome and carpal tunnel syndrome of the median and ulnar nerves of the left wrist (claimed as left hand condition). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. With respect to the issue of entitlement to service connection for a bilateral hearing loss disability, service connection was originally denied in August 1986 and confirmed in December 1988. The Board issued a January 1990 decision denying the Veteran's claim for service connection for a bilateral hearing loss disability. The Veteran subsequently requested reconsideration of that decision, which was denied in a June 1990 determination. The January 1990 decision was final, and as a result the Board must consider whether new and material evidence has been received to reopen that claim. The issue on appeal has been characterized on the title page accordingly. Regarding the Veteran's claimed left hand condition stemming from the July 2008 rating decision, in a subsequent May 2009 rating decision the RO granted service connection for flexion deformity of the left fifth finger proximal interphalangeal joint. The RO determined that failure to grant service connection for this specific condition in the July 2008 rating decision was clear and unmistakable error, partially due to a favorable May 2008 VA examination and opinion. Of note, for purposes of clarification, is the Veteran's history of representation. In October 2007 the Veteran appointed the Florida Department of Veterans Affairs as his representative. More recently, the Veteran appointed the American Legion as his representative in August 2009. Since the American Legion was appointed, all necessary communication has been forwarded to the American Legion. Notice of certification of the Veteran's appeals for both his left wrist condition and his bilateral hearing loss was sent to the American Legion. The American Legion had the opportunity to provide Informal Hearing Presentations and submit additional evidence on both issues. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS system to ensure review of the totality of the evidence. FINDINGS OF FACT 1. Evidence regarding the Veteran's bilateral hearing loss disability associated with the claims file since the January 1990 Board denial, when considered by itself or in connection with evidence previously assembled, is cumulative or redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hearing loss disability. 2. The preponderance of the evidence is against a finding that the Veteran's left wrist condition is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The January 1990 Board decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002; 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2013). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(2013). 3. The Veteran's left wrist condition was not incurred in or aggravated by service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim to reopen, notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. In this case, the Veteran was advised by a November 2007 letter of the evidence and information necessary to substantiate and reopen his claims, and the responsibilities of the Veteran and VA in obtaining such evidence. This notice was provided before the subsequent July 2008 rating decision. Although the letter erroneously noted that an August 1986 rating decision was the last final denial, the Board finds that such error was harmless as the letter did correctly advise the Veteran that his claim had been previously denied and the basis of such denial. As a result, VA has essentially complied with the duty to notify. The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records and private medical records submitted or identified by the Veteran with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or social security medical records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded VA examinations in May 2008 to evaluate both his hearing loss and his left wrist condition. The Veteran has not argued, and the record does not reflect, that these examinations are inadequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In both instances, the examiners considered the Veteran's relevant medical history and provide well-reasoned and adequately supported opinions. Furthermore, the Board notes the case of Woehlaert v. Nicholson, 21 Vet. App. 456 (2007), wherein the appellant argued that the Board was obligated to reopen his claim because the RO had arranged for an examination and that the examination in question was inadequate. In that decision, the Court held that the Board was not obligated to reopen a claim merely because the RO reopened the claim and undertook development such as obtaining a new examination or opinion. Furthermore, in Woehlaert, the Court also held that the adequacy of any such examination or opinion is moot if the Board determines that new and material evidence has not been presented, although the Board must certainly consider the results of such an examination or opinion as it would any evidence of record. Thus, even if the May 2008 audiological examination was inadequate, any such inadequacies are moot as the Board is finding that new and material evidence has not been received to reopen the claim. Finally, there is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. New and Material Evidence Decisions by the Board are final on the date stamped on the front of the Board decision. 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The Board does not have jurisdiction to consider a claim it previously adjudicated before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). As discussed, the issue of entitlement to service connection for bilateral hearing loss was originally adjudicated in August 1986 and December 1988 rating decisions. As discussed in the introduction, the Board subsequently denied entitlement to service connection in January 1990. The evidence at the time of the January 1990 Board decision included service treatment records, which did not record any reports of difficulty associated with the Veteran's hearing. A 1988 VA audiological examination diagnosing the Veteran with hearing loss was also of record. Additionally, the record included four statements in support of the Veteran's claim, from the Veteran's wife, the Veteran's sister, fellow serviceman U, and fellow serviceman R. At the time, the Veteran alleged that he had suffered hearing loss during service and immediately after service. Currently, the Veteran contends that he had hearing loss during service and immediately after service. In June 2009 the Veteran submitted private medical records and a new statement from fellow serviceman U from December 2007. Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. The Board originally denied the Veteran's claim because the evidence did not establish a relationship between the Veteran's bilateral hearing disability and his in-service exposure to noise. Since then, there has been no medical evidence added to the file which would establish such a relationship. The Veteran's assertion that he suffered hearing loss in service and immediately after service was before the Board at the time of the January 1990 decision and is therefore cumulative. The new private medical records provide no evidence of nexus, and only provide evidence that the Veteran is currently suffering from a hearing loss disability. This was established prior to the January 1990 Board decision. Additionally, the December 2007 statement from serviceman U essentially reiterates his 1988 statement. In essence, the evidence added to the record since the January 1990 Board decision does not raise a reasonable possibility of substantiating the claim. In summary, the defect with respect to the "nexus" requirement existing at the time of the prior final decision has not been cured, and the claim of entitlement to service connection for a bilateral hearing disability may not be reopened. III. Entitlement to Service Connection for a Left Wrist Condition Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These chronic conditions include other organic diseases of the nervous system, such as carpal tunnel syndrome (CTS), and are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Here, although the Veteran has reported symptoms of pain in his hand during the first year following separation, he is not competent to diagnose nerve compression syndrome or carpal tunnel syndrome so as to establish that either disorder manifested to a compensable degree within one year of service. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. At the May 2008 VA examination and a September 2008 private examination, the Veteran was diagnosed with nerve compression syndrome of the median and ulnar nerve of the left wrist, carpal tunnel syndrome affecting both median and ulnar nerve, and the previously service connected deformity of the proximal interphalangeal joint of the left fifth finger. Consequently, Shedden requirement (1) has been met. Service treatment records indicate that the Veteran sustained an injury to the left hand and wrist in March 1972. Records indicate that the Veteran sustained a small laceration on his left hand while playing softball, which did not require stitches. The Veteran received additional treatment in April 1972, and was put on light duty temporarily. This meets Shedden requirement (2), and the Board now turns to the third "nexus" requirement. At the May 2008 VA examination, the Veteran stated that the laceration healed but "ever since he has been having off and on pains in his left hand [and] wrist. He states that this condition seems to be getting worse." The examiner noted that the wound healed without complication. After performing an examination, the VA examiner determined that it was less likely as not that the Veteran's nerve compression syndrome of the median and ulnar nerve of the left wrist and the Veteran's carpal tunnel syndrome affecting both the median and ulnar nerve are related to the Veteran's in-service injury. In making this determination, the examiner cited his clinical experience and the lack of continuity between present symptoms and the findings on the review of the medical records. The examiner concluded that the Veteran's "symptoms related to the median and ulnar nerve do not show positive clinical findings at the present time that could be that old. In other words if the condition of the median and ulnar nerve would be related to his service injury in 1972 more atrophy of the muscles involved by this nerve and more numbness would be present at this time." As the Veteran has stated in his Notice of Disagreement and Substantive Appeal, the September 2008 private examination recommends surgery and a possible steroid injection as treatment for the condition. However, the private examination fails to provide any evidence or opinion related to the nexus. The private records pertain only to the Veteran's current disability, which is not at issue. The Veteran contends that his left hand and wrist have bothered him continually since the 1972 in-service injury. Initially, the Board notes that the Veteran is competent to report ongoing symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds the Veteran's assertions problematic given that he denied any swollen or painful joints at separation. Furthermore, the Board finds the question of the etiology of nerve compression syndrome and carpal tunnel syndrome to be particularly complex, especially given that the fact that he is presently service-connected for other disability in the hand as a consequence of that in-service injury. As noted, the VA examiner acknowledged the Veteran's report of pain in his left wrist since service, but also indicated that if the current disability was due to such a remote injury, there would be far more atrophy of the muscles present at this time. Therefore, the Board assigns significantly less probative weight to the Veteran's own lay statements than it does to the conclusions of the competent VA examiner. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the Veteran does not have a documented in-service diagnoses of nerve compression syndrome or carpal tunnel syndrome, or diagnoses within one year of separation, and the most probative and credible evidence of record shows that the disabilities are less likely than not incurred in or aggravated by his military service. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. ORDER New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for nerve compression syndrome and carpal tunnel syndrome of the median and ulnar nerves of the left wrist (claimed as left hand condition) is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs