Citation Nr: 1509052	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  10-28 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for folliculitis, both buttocks.

2.  Entitlement to service connection for folliculitis, both buttocks.

3.  Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hearing loss.

4.  Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to December 1970.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Veteran requested a Board hearing and was scheduled for a hearing in March 2012.  However, the Veteran did not report for the hearing.  Consequently, he is deemed to have waived his hearing request.  See 38 C.F.R. §§ 20.703, 20.704 (2014).  Therefore, the Board may proceed to adjudicate this appeal.

The issue of entitlement to service connection for folliculitis, both buttocks, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An August 2004 rating decision denied service connection for folliculitis, both buttocks.

2.  The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for folliculitis, both buttocks, and raises a reasonable possibility of substantiating that claim.

3.  A January 2002 rating decision denied service connection for hearing loss.
4.  The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hearing loss and raises a reasonable possibility of substantiating that claim.

5.  Affording the Veteran the benefit of the doubt, his hearing loss is related to acoustic trauma during active military service.


CONCLUSIONS OF LAW

1.  The August 2004 rating decision that denied service connection for folliculitis, both buttocks, is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).

2.  New and material evidence has been received to reopen a claim of entitlement to service connection for folliculitis, both buttocks.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (West 2014).

3.  The January 2002 rating decision that denied service connection for hearing loss is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).

4.  New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (West 2014).

5.  The criteria for service connection for hearing loss have been met.  38 U.S.C.A. § 1101, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2014).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).

Given the favorable disposition of the claims, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished.

II.  New and Material Evidence Analysis

Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A (West 2014) shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108 (West 2014).  See 38 U.S.C.A. § 5103A(f) (West 2014).  Reopening a claim for service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996).

New evidence means existing evidence not previously submitted to VA.  38 C.F.R. § 3.156(a) (2014).  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.  Id.  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.  Id.  
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) (2014) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2014).  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).

Concerning the Veteran's claim for folliculitis, in reviewing the evidence added to the claims folder since the August 2004 denial, the Board finds that additional evidence has been received which is sufficient to reopen the Veteran's claim.  At the time of the August 2004 denial, the Veteran had never claimed that his folliculitis had been constant since he left active service.  In a November 2008 statement, the Veteran noted that he had experienced folliculitis since discharge from active service.  He noted that over the years, his rash had increased in severity and had spread over larger parts of his body.  The Veteran wrote that he had the rash since 1969 and that it manifested itself for 3-5 days at a time.  This evidence was not before the RO in August 2004 and it is not cumulative or redundant evidence then of record.  It raises a reasonable possibility of substantiating the Veteran's claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that 38 C.F.R. § 3.156(b) (2014) contemplates additional development following reopening a claim in order to substantiate the claim).  Accordingly, the Board finds that new and material evidence has been added to the record since the August 2004 decision and the claim must be reopened.

Concerning the Veteran's claim for hearing loss, in reviewing the evidence added to the claims folder since the January 2002 denial, the Board finds that additional evidence has been received which is sufficient to reopen the Veteran's claim.  At the time of the January 2002 denial, the Veteran had never been given a VA audiology examination.  In an April 2010 Compensation and Pension (C&P) audio examination report, the VA examiner noted that the Veteran's speech recognition scores were 88 percent for his right ear and 80 percent for his left.  These scores qualify as hearing disabilities for VA purposes.  This evidence was not before the RO in January 2002 and it is not cumulative or redundant evidence then of record.  It raises a reasonable possibility of substantiating the Veteran's claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that 38 C.F.R. § 3.156(b) (2014) contemplates additional development following reopening a claim in order to substantiate the claim).  Accordingly, the Board finds that new and material evidence has been added to the record since the January 2002 decision and the claim must be reopened.

III.  Legal Criteria and Analysis

The Veteran contends that service connection is warranted for his hearing loss incurred due to acoustic trauma during active duty service.  Affording the Veteran the benefit of the doubt, the Board agrees.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. 
§ 3.303(a) (2014).  Service connection requires competent evidence showing: (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).

Under 38 C.F.R. § 3.385 (2014), disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 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 (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

The record establishes a current diagnosis of hearing loss on the most recent April 2010 C&P audio examination.  The VA audiologist who examined the Veteran stated that the Veteran reported military noise exposure including gunfire and an explosion.  The VA examiner noted that the Veteran's tinnitus was caused by an explosion during active service, thereby confirming the Veteran's reported acoustic trauma.  Based on this opinion and the Veteran's credible lay statements, the Board concedes acoustic trauma.  See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  The Board therefore finds that the first two elements of service connection, a current disability and in-service injury, are demonstrated.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran satisfies the third element of service connection, a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Id.  On the Veteran's January 1969 Report of Medical Examination for induction, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
NA
25
LEFT
15
10
15
NA
15





On his December 1970 Report of Medical Examination for separation, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
15
20
25
LEFT
20
25
25
30
35

On the April 2010 C&P audio examination report, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
25
40
LEFT
10
15
20
20
25

The Veteran's speech recognition scores were 88 percent for the right ear and 80 percent for the left ear.  This constitutes a hearing loss for VA purposes.  The examiner noted that the Veteran had mild high frequency sensorineural hearing loss at 4000 Hz in his right ear and normal limits in his left ear, disregarding the Veteran's speech recognition score for the left ear, which also showed hearing loss for VA purposes.  

The VA examiner noted that the Veteran's hearing was normal bilaterally when he entered the military and was shown to have some mild high frequency hearing loss in his left ear upon separation.  The examiner speculated that this could indicate a temporary threshold shift or variable behavioral response.  The Board notes that the VA examiner never explained why this shift was temporary instead of being permanent.  The VA examiner opined that it was not likely that the Veteran's current hearing loss was related to active service.  The examiner opined that the Veteran's tinnitus was related to an explosion during active service, and tinnitus can occur without hearing loss being present.  The Board notes that tinnitus can occur with hearing loss being present as well.  

Because the VA examiner disregarded the Veteran's credible statements concerning hearing loss since active service, as well as overlooking the possibility that the Veteran's hearing loss at separation could have been a permanent threshold shift, the Board finds that the April 2010 C&P audio examination report to be of minimal probative value with regard to the examiner's nexus opinion.  Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Although an etiological relationship has not been demonstrated through the foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection.  Davidson v. Shinseki, 581 F.3d at 1316.  As noted previously, the Veteran had a threshold shift in his hearing during service.  The Board finds the assertions by the Veteran, of continued hearing loss due to an explosion in service, to be competent and credible evidence of continuing symptoms since active service.  A veteran's lay statements may be sufficient evidence in any claim for service connection.  38 C.F.R. § 3.303(a) (2014) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."  See 38 U.S.C. § 1154(a) (West 2014) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").

Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence establishes a positive nexus between the Veteran's in-service acoustic trauma and his current hearing loss. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.385 (2014).  On this basis, service connection for hearing loss is warranted.





ORDER

The claim of entitlement to service connection for folliculitis, both buttocks, is reopened, and to that limited extent, the appeal is granted.

The claim of entitlement to service connection for hearing loss is reopened.

Entitlement to service connection for bilateral hearing loss is granted.


REMAND

In a November 2008 statement, the Veteran noted that he had been experiencing folliculitis since discharge from active service.  He noted that over the years, his rash had increased in severity and had spread over larger parts of his body.  The Veteran wrote that he had the rash since 1969 and that it manifested itself for 3-5 days at a time.  The Board notes that the Veteran has not had a VA examination to determine the existence and etiology of his folliculitis since he filed his original service connection claim in 1988.  On remand, A VA examination is necessary to determine if the Veteran has a current skin disability and if so, whether it is etiologically related to active service.

Accordingly, the case is REMANDED for the following actions:

1. Obtain copies of the complete updated VA clinical records of all evaluations and treatment the Veteran received for his folliculitis.  All requests for records and responses must be associated with the claims folder.

2. After the above has been completed, schedule the Veteran for VA examination with an appropriate examiner, including a complete physical evaluation, to determine whether any current skin disorder (to include folliculitis) was caused by, or is otherwise related to, his active military service, to include exposure to herbicides.  Any tests deemed necessary should be conducted and the claims folder must be provided to the examiner for review in conjunction with the examination.  The examiner must also note that the claims folder has been reviewed.  

The examiner is requested to:

a. Elicit from the Veteran a thorough history of the symptomatology of his claimed folliculitis, both during and after service;

Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed skin disorder began during service or is related to some incidence of service, to include as due to herbicide exposure.    Any and all opinions must be accompanied by a complete rationale.  

The examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation.

3. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinion without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made.

4. Upon completion of the above, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues.  An appropriate period of time should be allowed for response by the Veteran.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The Appellant has the right to submit additional evidence and argument on the matter 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 2014).




______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs