Citation Nr: 1417226	
Decision Date: 04/17/14    Archive Date: 05/02/14

DOCKET NO.  10-41 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service for residuals of a left eye injury.

2.  Entitlement to service connection for a left eye disability.  

3.  Entitlement to service connection for a right wrist disability.  

4.  Entitlement to service connection for a low back disability.  

5.  Entitlement to service connection for bronchitis.

6.  Entitlement to an increased initial rating for tinnitus, currently rated 10 percent.  

7.  Entitlement to an increased rating for a disability of the right pectoralis muscle, major, currently rated as 10 percent disabling.

8.  Entitlement to an increased initial rating for a left knee disability, currently rated 10 percent.
9.  Entitlement to an increased initial rating for a right knee disability, currently rated 10 percent.  

10.  Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from March 1991 to January 1996.

This matter comes before the Board of Veterans' Appeals (Board) from October 2009 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The Veteran testified at a hearing before the Board in November 2013.

With regard to the issue of entitlement to an increased rating for tinnitus, while additional treatment VA treatment records, VA examination reports, and private medical evidence was associated with the claims file subsequent to a supplemental statement of the case issued in April 2011, that evidence is not relevant to that issue and the Veteran is not prejudiced by the Board's adjudication of that issue.  Additionally, with regard to the eye disability issue, the Veteran submitted medical evidence in the form of a private medical opinion with a waiver of review by the agency of original jurisdiction (AOJ).  Consequently, the Veteran is not prejudiced by the Board's adjudication of that issue.  

The issues of entitlement to an increased rating for bilateral hearing loss, increased rating for a right pectoralis muscle disability, service connection for a right wrist disability, service connection for a low back disability, service connection for bronchitis, and increased ratings for left and right knee disabilities are REMANDED.  


FINDINGS OF FACT

1.  Tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.

2.  Service connection for a left eye disability was last denied by a rating decision in March 2002.  The Veteran did not perfect an appeal of the denial.

3. The evidence received since the March 2002 rating decision is new and raises a reasonable possibility of substantiating the underlying claim of service connection for a left eye disability.

4.  A chronic left eye disability was not incurred in or aggravated during active service.  


CONCLUSIONS OF LAW

1.  There is no legal basis for the assignment of a schedular rating in excess of 10 percent for bilateral tinnitus.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260 (2013); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
2.  New and material evidence sufficient to reopen a previously denied claim of service connection for a left eye disability has been received.  38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).

3.  A left eye disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009). 

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in a letter dated in May 2009.  The Veteran was advised in the correspondence that his claim for a left eye disability was previously denied because there was no evidence that permanent or chronic disability was incurred in or aggravated by service.  The correspondence also told the Veteran what constitutes new and material evidence and also advised him of the elements necessary to establish service connection on a direct basis.  That document satisfied the notice requirements.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  The Veteran has been given ample time to respond to that notice and provide evidence that relates to the previously unestablished facts.

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2011 supplemental statement of the case with regard to the increased rating claim for tinnitus and in the October 2012 supplemental statement of the case with regard to the left eye disability claim.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). 

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained examinations with respect to the claims.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Increased Rating for Tinnitus

The Veteran seeks an initial rating in excess of 10 percent for tinnitus.  

Disability ratings are based on the average impairment of earning capacity resulting from disability.  The percentage ratings for each diagnostic code, as set forth in VA's Schedule for Rating Disabilities, represent the average impairment of earning capacity resulting from disability.  38 C.F.R. Part 4 (2013).  Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). 

The Veteran's service-connected tinnitus has been rated under the criteria for rating recurrent tinnitus provided in 38 C.F.R. § 4.87, Diagnostic Code 6260.  As there is no other diagnostic code that addresses tinnitus symptoms, the Board finds that Diagnostic Code 6260 is the most appropriate diagnostic code.  The Veteran has not contended that another diagnostic code is more appropriate. 

Diagnostic Code 6260 provides a 10 percent disability rating for recurrent tinnitus.   That is the sole and highest disability rating provided for tinnitus under VA schedular regulations and the Veteran is already assigned a 10 percent rating.

To the extent that the record shows that the Veteran has been diagnosed with recurrent, bilateral tinnitus, Diagnostic Code 6260 limits a Veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260 (2013).  As there is no legal basis upon which to award separate schedular ratings for tinnitus in each ear, or to award any higher rating, the Veteran's appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 

The Board has considered whether referral for consideration of the assignment of an extraschedular rating is warranted.  The threshold factor for extraschedular consideration is a finding on the part that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  If so, factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2013).  

The Board finds that referral is not appropriate in this case.  The disability at issue has not been shown to markedly interfere with employment beyond that contemplated in the assigned ratings, to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards.  The examiners of record did not find that tinnitus markedly interfered with the Veteran's employment.  Moreover, the Veteran's tinnitus has not resulted in frequent periods of hospitalization.  Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted.  38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

New and Material Evidence

The Veteran originally submitted a claim of entitlement to service connection for a left eye disability in January 2002.  The claim was denied by a March 2002 rating decision.  Notice of the denial and notice of appellate rights were provided in March 2002.  The Veteran did not appeal that decision and the RO decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).  As a result, service connection for a left eye disability may now be considered on the merits only if new and material evidence has been received since the time of the prior final adjudication.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996).

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no new and material evidence has been offered, that is where the analysis must end.  Butler v. Brown, 9 Vet. App. 167 (1996).

Evidence is considered new if it was not of record at the time of the last final disallowance of the claim.  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) (2013).

In determining whether new evidence is material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  New and material evidence is not required as to each previously unproven element of a claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

At the time of the prior final denial, the evidence consisted of the Veteran's service medical records and a February 2002 VA joints examination.

The service medical records showed that the Veteran sustained a corneal abrasion in August 1995.  Conjunctivitis was subsequently noted later in August 1995.  An abrasion was not shown on examination and mild allergic conjunctivitis was treated with artificial tears until full resolution.  The June 1995 separation examination found 20/20 vision with no complaint of residuals of an eye injury.  

The RO denied the claim because the Veteran's corneal abrasion and allergic conjunctivitis resolved and were an isolated event with no permanent residual or chronic disability noted on separation from service.  

The Veteran submitted the current claim to reopen his claim for service connection for a left eye disability in May 2009.  Evidence associated with the claims file since the final prior denial consists of VA treatment reports, private treatment reports, additional VA examination reports, and testimony offered by the Veteran at a November 2013 Travel Board hearing.

Because the evidence received since the prior denial was not previously of record, and because it addresses specifically the issue before the Board, the Board finds that the new evidence is material.  38 C.F.R. § 3.156 (2013).  Since the final prior denial, there is evidence that the Veteran has a diagnosis of dry eye syndrome.  Moreover, he has indicated that he has had trouble with his left eye since his injury in service requiring the use of eye drops.  Consequently, the Veteran has indicated that his left eye disability began in service and has continued since that time.  The Veteran is competent as a lay person to provide testimony regarding continuity of symptoms and self-treatment.  Where a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Additionally, the evidence shows a diagnosis for the left eye.  Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim.

Accordingly, the claim of service connection for a left eye disability is reopened and the claim for service connection will be considered.

Service Connection

The Veteran contends that he has a left eye disability related to an injury he sustained in service.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).  

The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability.  That evidence must be medical unless it relates to a condition as to which lay observation is competent.  38 C.F.R. § 3.303(b) (2013).

Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

The service medical records show that the Veteran sustained a corneal abrasion in August 1995.  Conjunctivitis was subsequently noted later in August 1995.  An abrasion was not shown on examination and mild allergic conjunctivitis was treated with artificial tears until full resolution.  The June 1995 separation examination revealed 20/20 vision with no complaint of residuals of an eye injury.

VA outpatient treatment reports document a diagnosis of dry eye syndrome in March 2012 for which the Veteran was prescribed Hypromellose ophthalmologic solution.  The Veteran also submitted undated copies of prescriptions for Hypromellose ophthalmologic solution.  

At a March 2012 VA examination, the Veteran reported that he sustained a corneal abrasion of the left eye in service in 1995 for which he was treated with ointment and patching.  On follow up two days later, the abrasion resolved.  The Veteran reported a history of left eye stinging and burning requiring the use of eye drops since that time.  The examiner diagnosed the Veteran with dry eyes and opined that dry eyes was not caused by or the result of a corneal abrasion of the left eye in service.  The examiner's rationale was that the Veteran's corneal abrasion resolved in two days which is typical of that type of injury.  The examiner indicated that there was no residual scar or any physical sign of the injury because the injury in service was a superficial injury of the corneal epithelium which constantly replaces itself.  The examiner reported that dry eyes are very common and are caused by multiple factors including normal aging, certain medications, environmental factors, and some systemic diseases.  The examiner concluded that the Veteran has dry eye in both eyes and the condition is the result of a combination of factors and not the result of his corneal abrasion of the left eye.  

Associated with the claims file is a statement from T. Madding, O.D., which indicates that the Veteran was examined in November 2013 and a faint scar of the cornea was found at the base of the cornea of the left eye.  The examiner indicated that the scar most likely was attributed to an eye injury in service in August 1995.   Dr. Madding concluded that the scar caused a condition known as dry eye syndrome which requires the use of medicated eye drops.  

The Veteran testified that he got a piece of metal in his safety glasses during service and sustained a corneal abrasion.  He indicated that he has had trouble with his eye since the injury in service and has used both over-the-counter and prescription eye drops since service.  He testified that his current diagnosis is dry eye syndrome.  

In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a left eye disability. 

The Board finds that the preponderance of the competent evidence is against a finding of a relationship of the Veteran's claimed left eye disability and his period of active service.  The Board notes that the March 2012 VA examiner indicated that the Veteran's corneal abrasion was superficial injury which completely resolved in service.  Moreover, the examiner noted that the Veteran's dry eye syndrome was bilateral and multifactorial and unrelated to the left eye injury sustained in service.  While Dr. Madding reported that the Veteran's dry eye syndrome was related to the corneal abrasion, he provided no rationale for the conclusion particularly in light of the fact that the Veteran's current eye disability is bilateral and the Veteran sustained a corneal abrasion of only the left eye.  By contrast, the VA examiner provided a thorough rationale for the conclusion that the current dry eye syndrome was unrelated to the corneal abrasion of the left eye in service.  Consequently, the Board concludes that the VA examiner's opinion is more probative as to the etiology of the claimed left eye disability. 

Although the Veteran contends that he has a left eye disability related to his active service, he has submitted no competent medical evidence or opinion to corroborate that contention.  Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1) (2013).  The Veteran's opinion is not competent to provide the requisite etiology of the claimed left eye disability because those matters require medical expertise.  38 C.F.R. § 3.159(a)(1) (2013); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995).  Therefore, his statements regarding his left eye disability being related to service are not competent as he is not medically qualified to provide evidence regarding a matter requiring medical expertise, such as an opinion as to etiology. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a left eye disability, and the claim must be denied.   Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).


ORDER

Entitlement to an initial increased rating for tinnitus, currently rated 10 percent, is denied.

Entitlement to service connection for a left eye disability is denied.  


REMAND

A remand is necessary before a decision on the merits of the remaining claims can be reached.  

With regard to the claim for an increased rating for a disability of the right pectoralis muscle and the claims of entitlement to service connection for a right wrist disability, a low back disability, and bronchitis, a supplemental statement of the case was issued in April 2011.  However, additional evidence in the form of VA treatment reports and VA examination reports were subsequently added to the claims file.  However, the most recent supplemental statement of the case in October 2012, did not include those issues.  Consequently, a supplemental statement of the case with regard to the issues of an increased rating for a disability of the right pectoralis muscle and entitlement to service connection for a right wrist disability, a low back disability, and bronchitis must be issued.  

Additionally, with regard to the issues of entitlement to increased ratings for hearing loss and a right pectoralis muscle disability, the Veteran testified that his disabilities had worsened since the most recent examinations in April 2012 with regard to the hearing loss claim and in June 2009 with regard to the right pectoralis muscle disability.  Where there is evidence that a service-connected disability has worsened since the last examination, a new examination may be required to rate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997).  In order to properly adjudicate the claims for increased ratings for hearing loss and a right pectoralis muscle disability, new VA examinations should be obtained to determine the current nature and severity of the disabilities.

With regard to the issues of entitlement to increased rating for left and right knee disabilities, in November 2012, the Veteran expressed disagreement with an October 2012 rating decision which granted entitlement to service connection for a left and right knee disability.  However, the RO did not issue a statement of the case with regard to those issues.

Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).

VA outpatient treatment reports dated through October 2012 have been associated with the claims file.  Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain such records should be made.  38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992).  Any treatment records dated after October 2012 should be obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's VA treatment reports dated since October 2012.  

2.  Issue a statement of the case which addresses the issues of entitlement to increased initial ratings for right and left knee disabilities.  Notify the Veteran that he must perfect an appeal of those issues if he desires appellate review.

3.  After all available records have been associated with the claims file, schedule the Veteran for a VA audiological examination to evaluate the current severity of his bilateral hearing loss.  The examiner must review the claims file and must note that review in the report.  The evaluation should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85(a) (2013).  In addition, the examiner should comment upon whether the Veteran's service-connected bilateral hearing loss results in marked interference with employment and what social and occupation impairment is caused by hearing loss.

4.  After the above development has been completed, schedule the Veteran for a VA examination to ascertain the current nature and severity of a right pectoralis disability.  The examiner must review the claims file and must note that review in the report.  The examiner should review all pertinent evidence of record, including the reports of radiologic examinations of the right shoulder.  Then, the examiner should address the following:

a.  Identify all sign of muscle injury of the service-connected right pectoralis major. 

b.  Describe the Veteran's ability to elevate and abduct the right arm, to swing it back and forth, and provide objective measurement of restrictions, such as inability to lift objects above a certain weight.  Describe whether or not each of the cardinal signs and symptoms of a muscle disability is shown, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement.

c.  State whether the Veteran's right pectoralis major shoulder disability is manifested by any painful flare-ups, and, if so, their frequency and duration.  Specify whether any flare-ups are accompanied by any additional limitation of motion or other functional loss. 

d.  State whether there is an impact on other muscles or muscle groups. 

e.  State whether the overall degree of injury to the affected right shoulder muscle group would be considered moderate, moderately severe, or severe. 

f.  State whether there is any impairment of the clavicle or scapula.  Specifically, state whether there is malunion of the clavicle or scapula, nonunion of the clavicle or scapula with or without loose movement, or dislocation of the clavicle or scapula.  

g.  Comment upon whether the Veteran's service-connected right pectoralis major muscle injury results in marked interference with employment.

5.  Then, readjudicate the claims, including entitlement to  increased ratings for hearing loss and a disability of the right pectoralis and entitlement to service connection for a right wrist disability, a low back disability, and bronchitis.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.  

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 or the United States Court of Appeals for Veterans 


Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs