Citation Nr: 1524554 Decision Date: 06/09/15 Archive Date: 06/19/15 DOCKET NO. 13-30 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable disability rating for pseudofolliculitis barbae. 2. Entitlement to a compensable disability rating for residuals of injury of the right fourth finger. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss. 4. Entitlement to service connection for an acquired psychiatric disorder claimed as stress, depression and antisocial behavior. 5. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service form September 1983 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In correspondence received in November 2014, the Veteran revoked his power of attorney in favor of agent Jerome Ware. He has not appointed another representative. The issues of entitlement to an increased rating for pseudofolliculitis barbae, an increased rating for a disability of the right fourth finger, service connection for an acquired psychiatric disorder and entitlement to a rating under § 3.324 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a November 2004 rating decision, the RO denied service connection for hearing loss. 2. The evidence received since the November 2004 rating decision is new but does not relate to an unestablished fact necessary to substantiate the claim for service connection for hearing loss. CONCLUSIONS OF LAW 1. The November 2004 rating decision which denied service connection for hearing loss is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2014). 2. New and material evidence has not been received since the November 2004 rating decision to reopen the previously denied claim for service connection for hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156(a), 20.1101 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2012. The letter informed the Veteran of what evidence was required to substantiate the claim to reopen service connection for hearing loss and informed the Veteran of the Veteran's and VA's respective duties for obtaining evidence. The letter advised the Veteran how disability ratings and effective dates are assigned. The notice was provided prior to the rating decision on appeal. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The RO initially obtained the service treatment records from the NPRC in November 2004. However, the RO subsequently determined that the Veteran's service treatment records were not on file at the RO. The RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC) in March 2012. A March 2012 response from the NPRC indicated that the best copy of the microfiche service treatment records were mailed in November 2004. In April 2012, the RO issued a Formal Finding of Unavailability for the service treatment records, as the records could not be located. The Veteran subsequently submitted a copy of his service treatment records to the RO. No further efforts to obtain the service treatment records are necessary, as the Veteran has provided the service treatment records to the RO. The Veteran had a VA examination for hearing loss in May 2012. However, VA is not required to obtain an examination for a claim to reopen a final decision, unless new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(C)(iii). The Board finds that all necessary development has been accomplished with respect to the claim being decided, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim to Reopen Service Connection for Hearing Loss A claim for service connection for hearing loss was previously denied in a November 2004 rating decision. The rating decision found that there was no medical evidence of a current hearing loss disability as defined by VA. The RO provided the Veteran with notice of the rating decision and his appellate rights. The Veteran did not submit a timely notice of disagreement. 38 U.S.C.A. § 7105. The Veteran also did not submit any information or evidence within one year of the November 2004 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2014); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-252 (2010) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b) ). As the Veteran did not submit a timely notice of disagreement or any additional evidence within one year of notice of the November 2004 rating decision, the rating decision became final based upon the evidence of record. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103. The evidence of record at the time of the November 2004 rating decision included the service treatment records. In August 2012, the Veteran sought to reopen the claim for service connection for hearing loss. Under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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) (2014). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). In Shade v. Shinseki, 24 Vet. App. 110 (2010) the Court stated that the phrase "raises a reasonable possibility of substantiating the claim" is not a third part of the new and material standard. The Court indicated the phrase must be viewed as "enabling" reopening rather than "precluding" it. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The evidence of record at the time of the November 2004 rating decision included service treatment records. The evidence received since the November 2004 rating decision includes a May 2012 VA examination report and the Veteran's written statements. The May 2012 VA examination does not show a current hearing loss disability as defined by § 3.385. Audiometric testing did not show puretone thresholds of 40 or greater at frequencies of 500, 1000, 2000, 3000 or 4000 or thresholds of 26 or greater at frequencies of 500, 1000, 2000, 3000 or 4000. The Veteran had speech discrimination scores of 96 percent in each ear. The VA examiner diagnosed normal hearing of the right ear and sensorineural hearing loss of the left ear at higher frequencies. The Veteran's written statements, including an August 2012 written statement, reflect his contention that he has hearing loss that is related to service. The Veteran is competent to report symptoms of hearing loss that he may have experienced. However, as a layperson, he is not competent to diagnose a bilateral hearing loss disability, because hearing loss is identified by objective and specific audiometric and speech recognition testing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that new and material evidence has not been received to reopen the claim for service connection for hearing loss. The claim was previously denied due to a lack of evidence of a current hearing loss disability as defined by VA regulation. The evidence received since the prior final denial does not establish a current disability as defined by § 3.385. The new evidence received since the prior final denial is not material to the claim because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable probability of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received to reopen service connection for hearing loss. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence not having been received, the claim for service connection for hearing loss is not reopened. REMAND Increased Rating for Pseudofolliculitis Barbae The Veteran had a VA examination for pseudofolliculitis barbae in May 2012. The examination report did not indicate the percentage the face and neck area affected by pseudofolliculitis barbae. The examiner only noted that the Veteran did not have any of the listed conditions even though the Board may rate the Veteran's skin disability by analogy as well. On remand, the Veteran should be afforded a new VA examination the fully addresses the rating criteria and provides a description of the percentage of the face and neck affected by pseudofolliculitis barbae. Increased Rating for Injury of Right Fourth Finger The Veteran's most recent VA examination of his right fourth finger was performed in May 2012. The May 2012 VA examination concluded that there was no limitation of motion or functional limitations of the right hand associated with the finger injury. The Veteran was scheduled for a VA examination of his hand in July 2014, but he failed to report for the examination. In August 2014, the Veteran informed the RO that he received a call about the examination but was unable to report to the examination because of transportation problems. He requested to reschedule the examination. The Board finds that good cause has been established for the Veteran's failure to report to the August 2014 VA examination, and that his examination should be rescheduled. Service Connection for an Acquired Psychiatric Disorder The Veteran asserts that he had stress, depression and antisocial behavior since active duty service in 1986. He asserts that his psychiatric disabilities are related to his discharge from service. The Veteran maintains that he was unjustly discharged from service after being accused of drug possession. Service treatment records show that the Veteran was referred for mental health evaluation for alcohol use in January 1986. He reported that his stresses included the evaluation process. A February 1986 entry in the service treatment records noted that there was no alcohol diagnosis. The entry noted that the Veteran did not seem to have an alcohol problem. An April 1986 entry shows that paraphernalia was found in the Veteran's room during a customs check. The Veteran denied present use of illegal drugs. A urinalysis was negative. VA treatment records reflect complaints of depression. In May 2007, the Veteran reported that he felt like he had parasites in his rectum. He reported that he had experienced this for 10 years. The record indicated that the Veteran should be evaluated for a psychotic disorder. VA treatment records dated in July 2009 show that the Veteran described himself as "severely depressed." The Veteran had a VA examination in May 2012. The VA examiner diagnosed alcohol dependence and substance-induced mood disorder with depressive symptoms. In a May 2012 addendum, the examiner indicated that the claims file was reviewed. The examiner noted that no changes to the May 2012 examination were warranted. The Board finds that VA examination inadequate, as the examiner did not address the Veteran's report of depressive symptoms since service and did not address the complaints in the VA outpatient treatment records which noted depressive and psychotic symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007) (A VA examination is considered adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the evaluation of the Veteran will be a fully informed one.) The Board therefore finds that a new VA examination is warranted. Additional development is necessary to obtain potentially relevant records. The AMC/ RO should attempt to obtain the Veteran's personnel records, as they may contain information pertinent to his claim. It also appears that records pertinent to the claim for service connection for an acquired psychiatric disorder may still be outstanding. The Veteran reported that he was treated at the Bryan Psychiatric Center in Columbia, South Carolina. A review of the records indicates that the RO requested treatment records from the Brian Skilled Nursing Facility rather than the Bryan Psychiatric Hospital. A negative response was received from the Brian Skilled Nursing Facility in May 2012. On remand, the AMC/ RO should obtain an authorization from the Veteran for the treatment records from the Bryan Psychiatric Hospital and should attempt to obtain any identified records. Rating under 38 C.F.R. § 3.324 In November 2012, the Veteran filed a notice of disagreement with the November 2012 rating decision that denied entitlement to a 10 percent rating under 38 C.F.R. § 3.324. Since a notice of disagreement has been submitted with respect to this issue, a statement of the case should be issued. Manlincon v. West, 12 Vet. App. 238 (1999) Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC and obtain the Veteran's personnel records for his period of active service. All responses should be documented in the claims file. 2. Obtain a current authorization from the Veteran for treatment records from the Bryan Psychiatric Center in Columbia, South Carolina. If the Veteran returns a completed authorization, obtain the records and associate them with the claims file. All responses should be documented in the claims file. 3. Schedule the Veteran for a VA examination to ascertain the current severity of pseudofolliculitis barbae. The claim file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the percentage of the entire body and/or exposed areas affected and whether any systemic therapy such as corticosteroids or other immunosuppressive drugs are necessary; and if so, the total duration of such treatment. 4. Schedule the Veteran for a VA examination of his right fourth finger. The claim file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should provide the range of motion of the Veteran's right fourth finger and comment on the degree of functional loss due to pain, weakness, excess fatigability, incoordination, and flare-ups. The examiner should describer the Veteran's functional limitations due to his right fourth finger disability. Any functional loss should be described in terms of additional loss of motion in degrees. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current acquired psychiatric disorder. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. Any medical testing should be accomplished. After reviewing the record and examining the Veteran, the examiner should provide an opinion as to the following: a. Diagnose any current acquired psychiatric disorder(s). b. State an opinion as to whether any current diagnosed acquired psychiatric disorder is at least as likely as not (50 percent or greater likelihood) related to service. The examiner's opinion should address the following: 1) Service treatment records which show that the Veteran reported stress due to the evaluation process for alcohol treatment. 2) Service treatment records which show that the Veteran denied the use of illegal drugs and had a negative urinalysis test. 3) The Veteran's statements which reflect his contention that he experienced depression since 1986 due to his discharge from service. 4) VA treatment records dated in 2007 and 2009, which show that the Veteran reported depressive and psychotic symptoms. 5) The June 2012 statement from the Veteran's sister, which indicated that his personality was different after he returned from service. 6) Any personnel records that are obtained from the NPRC. The examiner should provide a detailed rationale for any stated opinions. If an examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 6. Issue the Veteran a statement of the case on the matter of entitlement to a 10 percent rating under 38 C.F.R. § 3.324. The issue should only be returned to the Board if a timely substantive appeal is filed. 7. Then, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned 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). (Continued on the next page) 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs