Citation Nr: 1414218 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-04 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder, and if so, service connection for the same. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. 5. Entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to December 1975. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A June 2009 appears to have reopened a previously denied claim for service connection for a low back disorder and denied the claims for service connection for low back and skin disorders and nonservice-connected pension. A March 2011 rating decision denied the claims for service connection for bilateral hearing loss and tinnitus. In August 2012, the Veteran testified before a Decision Review Officer (DRO) at the RO as to his claims for service connection for bilateral hearing loss and tinnitus. In October 2013, the Veteran testified as to all of the claims on appeal via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. At that time, the Veteran requested that the record be held open for 30 days to allow him time to submit additional evidence; however, no such evidence has been received. Transcripts of the hearings have been associated with the claims file. Review of the VA paperless claims processing systems reveal additional documents pertinent to the present appeal, specifically, the transcript of the Veteran's Board hearing. The issues of entitlement to nonservice-connected pension and service connection for a skin disorder, addressed in the REMAND portion of the decision below, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a September 1993 rating decision, the RO denied the claim for service connection for a low back disorder; the Veteran did not appeal. 2. The evidence received since the September 1993 rating decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a low back disorder. 3. The Veteran experienced recurrent low back symptoms, characterized as degenerative joint disease and lumbosacral strain, since his separation from service to the present. 4. The Veteran's bilateral hearing loss is attributed to his in-service acoustic trauma. 5. The Veteran's tinnitus is attributed to his in-service acoustic trauma. CONCLUSIONS OF LAW 1. The September 1993 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.302 (2013). 2. New and material evidence has been received to reopen the claim for service connection for a low back disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.201 (2013). 3. A low back disorder, characterized as degenerative joint disease and lumbosacral strain, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 4. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 5. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). In this case, the most recent final denial of the Veteran's claim for service connection was in September 1993. Within one year of the September 1993 rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). As such, the September 1993 rating decision became final. Relevant evidence added to the record since the September 1993 rating decision includes VA treatment records and reports of VA examinations which include a diagnosis of arthritis, or degenerative joint disease; as well as the Veteran's hearing testimony as to continuous low back symptoms from the time of his separation from service to the present. As the newly received evidence includes a diagnosis of degenerative joint disease, as discussed below, a chronic disease for VA compensation purposes, and probative evidence of recurrent low back symptoms since service, the new evidence is material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in 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). Accordingly, this claim for service connection for a low back disorder is reopened. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. For purposes of 3.303(b), where the veteran asserts entitlement to a chronic disease 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). Such chronic diseases, including arthritis and sensorineural hearing loss, may also be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. Low Back Disorder During his Board hearing, the Veteran reported that he was lifting a 1000-pound bomb aboard ship and felt his back "snap." He reported that he was treated for low back pain and has experienced such since that time. The Veteran separated from service in December 1975 and filed his first claim for service connection for a low back disorder in April 1976, less than one year later. The Veteran's service treatment records dated in December 1973 indicate that he complained of low back pain for eight months; however, physical examination was normal and no diagnosis was recorded. He complained again of low back pain in October 1974. His service separation physical examination, dated in December 1975, is silent for complaint, treatment, or diagnosis of a low back disorder; however, a report of medical history is not available. The Veteran presented for VA examination of the lumbar spine in June 1993, at which time he reported that he lifted bombs and heavy objects during service. The examiner noted that the Veteran had nominal spurring anteriorly, at L-4. On VA examination in May 2009, the Veteran again reported his in-service duties lifting heavy objects and his episode of back pain when his back "snapped." He reported weekly back pain since that time. He was diagnosed with degenerative joint disease of the lumbar spine. On VA examination in March 2011, he again reported his in-service back history and was diagnosed with lumbosacral strain with X-ray examination findings of degenerative changes. The Veteran is competent to report continuous or recurrent low back symptoms since separation from service, and there is no evidence that he is not credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran's competent and credible, and thus probative, lay statements as to continuity of low back symptoms since separation from service are bolstered by the fact that he filed a claim for service connection for a low back disorder within one year of separation from service. After resolving all reasonable doubt in the Veteran's favor, the Board finds that his current low back disorder had its onset in service. The Veteran has a current diagnosis of a low back disorder, degenerative joint disease and lumbosacral strain, and was seen for complaints of low back pain during service. He has demonstrated continuous or recurrent symptoms of a low back disorder since his separation from service to the present. 38 C.F.R. § 3.303(d). The Board thus finds that the evidence of record sufficiently places the onset of a low back disorder during active service. Service connection for a low back disorder, characterized as degenerative joint disease and lumbosacral strain, is warranted. The appeal is granted. Bilateral Hearing Loss and Tinnitus During his DRO and Board hearings, the Veteran argued that his DD-214, his service separation form, incorrectly lists his military occupational specialty (MOS) as chef or cook. He specifically denied serving as such at any point during his service. Instead, he argued that he was assigned to the USS Coral Sea, dealing with weapons as an aviation ordnance man. He described his duties to include sleeping under the catapult, and being exposed to noise from elevators, engines, motors, pneumatic devices, and weapons. In support of his claim, he submitted two performance reports, covering the period dated from March 1973 to September 1974, describing his duties aboard the USS Coral Sea while he was assigned to the "G" Division of the Weapons Department, including the receipt, stowage, assembly, and issue of conventional aviation ordnance, as well of the upkeep and maintenance of assigned magazines and spaces and security and messenger watches. The Veteran also submitted an undated article from the Internet describing the job duties of service members assigned to the G1-G5 divisions. While it is unclear to which section of the "G" Division the Veteran was assigned; his service personnel records, the performance reports submitted, indicate that he was indeed assigned to the "G" Division, and it appears that all "G" Division sections dealt with ordnance maintenance. The Veteran is competent to report the circumstances of his service, including exposure to noise and job duties dealing with ordnance maintenance, and there is no evidence that he is not credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board cannot explain why the Veteran's DD-214 indicates that he served as a chef or cook; however, the Veteran's competent and credible, and thus probative, lay statements as to his circumstances of service are bolstered by the submitted performance report describing his duties in the "G" Division dealing with ordnances. The Board thus concedes acoustic trauma in the present appeal. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of bilateral hearing loss or tinnitus. Significantly, his bilateral hearing acuity was not measured at the time of his service separation examination in December 1975, and a report of medical history is not available. As such, there is no information with which to compare his results of hearing acuity testing upon enlistment. On VA examination in February 2011, he presented with bilateral hearing loss that meets the VA requirements for consideration as a disability, as he demonstrated speech discrimination scores of 80 percent, bilaterally. 38 C.F.R. § 3.385. At that time, he reported his in-service acoustic trauma, as discussed above, as well as in-service right ear aches and long-standing tinnitus, without a specific date of onset. Subsequent to review of the claims file and audiological examination, the examiner noted that the Veteran entered service with bilateral hearing within normal limits and no service separation examination report was available. He asserted that it is generally accepted that exposure to the machinery the Veteran described could cause hearing loss and tinnitus; and considering the severity of the Veteran's hearing loss and configuration, a relationship does exits. He concluded that due to the nature of the Veteran's job in the military, his current bilateral hearing loss and tinnitus are at least as likely as not due to military noise exposure. After resolving all reasonable doubt in the Veteran's favor, the Board finds that his current bilateral hearing loss and tinnitus are related to his in-service acoustic trauma. The Veteran has current diagnoses of bilateral hearing loss and tinnitus, and there is of record a sufficient medical opinion attributing such to his in-service acoustic trauma. Service connection for bilateral hearing loss and tinnitus is warranted. The appeal is granted. ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened; and service connection for a low back disorder, characterized as degenerative joint disease and lumbosacral strain, is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND The Veteran has been denied nonservice-connected pension on the basis that his nonservice-connected disabilities were rated together as 50 percent disabling, which does not meet the percentage requirements for permanent and total disability for pension purposes. As the Veteran has, by this Board decision, been awarded service connection for a low back disorder, bilateral hearing loss, and tinnitus, and the claim for service connection for a skin disorder remains outstanding, the issue of entitlement to nonservice-connected pension is not yet ripe for adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the AMC should effectuate the Board's grant of service connection for a low back disorder, bilateral hearing loss, and tinnitus, adjudicate the claim for service connection for a skin disorder, and calculate the combined evaluation of the Veteran's service-connected and nonservice-connected disabilities to determine if the issue of entitlement to nonservice-connected pension has become moot. In his August 2008 claim for service connection for a skin disorder, the Veteran asserted that he had service in the Republic of Vietnam and was exposed to herbicides, and that his skin disorder was due to such. However, during his Board hearing, he asserted that his skin disorder is related to the showers he took aboard the USS Coral Sea during service, with water contaminated with gasoline. Review of the Veteran's service treatment records indicate that he complained of itching in the groin in July 1974 and October 1974, plantar warts in December 1974, folliculitis of the face in January 1975, and calluses of the feet in April 1975 and June 1975. The Board notes here that prior development, including receipt of a May 2009 finding from the Joint Services Records and Research Center (JSRRC), is negative for evidence of exposure to herbicides. The Veteran, during his Board hearing, asserted that he was treated for skin disorders at the VA Medical Center (VAMC) in the Bronx, New York, in the years immediately following separation from service. Already associated with the record is a negative response as to available records from the VAMC in the Bronx, New York, dated in June 1993. He also reported treatment at the VAMC in Detroit, Michigan, for bumps on the side of his face, chest, and shoulder. The only VA treatment records associated with the claims file are from the VAMC in Detroit, Michigan, and are dated from June 2008 to September 2008, silent for complaints of bumps on the side of his face, chest, and shoulder. Also, the Veteran reported, during his Board hearing, that he was recently denied disability benefits from the Social Security Administration (SSA). However, it is not clear if such a SSA claim or records are relevant as to his current claim for service connection for a skin disorder. On remand, the AMC should obtain and associate with the claims file the Veteran's VA treatment records dated after June 1993 from the VAMC in the Bronx, New York, and his VA treatment records dated prior to June 2008 and since September 2008 from the VAMC in Detroit, Michigan. Also, the AMC should contact the Veteran and clarify if he asserted entitlement to disability benefits from the SSA on the basis of his skin disorder, or if his SSA records are otherwise relevant as to his current claim for service connection for a skin disorder. VA treatment records indicate that the Veteran complained of a rash on the right ankle during VA treatment in June 2008 and presented with atopic dermatitis in July 2008 and dermatitis in August 2008. On VA examination in May 2009, he was diagnosed with dermatitis of the left leg. On remand, the Board seeks a medical opinion as to whether any current skin disorder is related to any aspect of service. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and clarify if he asserted entitlement to disability benefits from the SSA on the basis of his skin disorder, or if his SSA records are otherwise relevant as to his current claim for service connection for a skin disorder. If a positive response is received, obtain and associate with the claims file all relevant records related to his claim for disability benefits from the SSA, to include any treatment records or evaluations upon which SSA based its decision. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Obtain and associate with the claims file the Veteran's VA treatment records maintained by the VAMC in the Bronx, New York, dated after June 1993, and his records maintained by the VAMC in Detroit, Michigan, dated prior to June 2008 and since September 2008. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 3. Schedule the Veteran for a VA examination to determine the etiology of his skin disorder. The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's skin disorder over the course of the appeal, including, but not limited to, rash, atopic dermatitis, and dermatitis, was incurred in service, or is otherwise related to service. The examiner should consider the Veteran's lay statements as to his in-service and post-service skin complaints, as well as his claimed in-service exposure to shower water contaminated with gasoline and his documented in-service complaints of itching in the groin, calluses, plantar warts, and folliculitis. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 4. After completion of the above and any additional notice or development deemed necessary, readjudicate the Veteran's claim for service connection for a skin disorder. Calculate the combined evaluation of the Veteran's service-connected and nonservice-connected disabilities to determine if the issue of entitlement to nonservice-connected pension has become moot. If any claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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). These claims 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. 2013). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs