Citation Nr: 1802345 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-14 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right hand disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on his initial period of active duty for training from March 1960 to September 1960, with subsequent periods of active duty for training and inactive duty for training ending in September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 rating decisions of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2016, the Veteran testified before a Decision Review Officer (DRO) at the RO. The Veteran also testified before the undersigned at a videoconference hearing held in October 2017. Transcripts of the hearings have been associated with the Veteran's claims file. During the October 2017 Board hearing, the Veteran stated he was unrepresented in the appeal. He indicated that although there was a power of attorney (POA) form filled out, received in July 2017, the Veteran indicated that he did not know who the claimed representative was that submitted the power of attorney form and that he did not recall signing the POA form. As a claimant retains the right to revoke his representative at any time, the October 2017 revocation is acknowledged by the Board, and he also has not subsequently requested or claimed representation. Thus, the Veteran is considered to be unrepresented at the present time. The Board also notes that the issue of a temporary total rating for his back surgery was addressed during the October 2017 Board hearing. However, a review of the claims file shows that a February 2017 rating decision had granted entitlement to the claimed temporary total evaluation for the back surgery. This represents the maximum benefit that can be assigned by law, and is thus a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, no further development is needed with respect to this claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A June 2013 Board decision denied the Veteran's claim of entitlement to service connection for a right hand disability. 2. The evidence received since the June 2013 Board decision denial is cumulative of the evidence at the time of the prior final denial of service connection as to a right hand disability, and does not raise a reasonable possibility of substantiating the claim. 3. A March 2010 Board decision denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. 4. The evidence received since the March 2010 Board decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 5. The evidence of record is at least in equipoise as to whether the Veteran has bilateral hearing loss related to service. CONCLUSIONS OF LAW 1. Since the June 2013 Board decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for a right hand disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. Since the May 2010 Board decision, new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in June 2014 and March 2015. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. The Veteran has not identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Application to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be 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. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). Procedural History Service connection for arthritis of multiple joints, to include a right hand disability, as well as bilateral hearing loss was initially denied in a March 2003 rating decision, on the basis that the Veteran's right hand injury during service was treated and resolved and that there was no evidence that the Veteran's claimed bilateral hearing loss existed. He was notified of the denials by letter dated March 27, 2003. The Veteran filed a timely notice of disagreement in April 2003. A statement of the case (SOC) was issued in March 2005 in response to the Veteran's notice of disagreement. The Veteran did not perfect the appeal, and no new and material evidence was received within 60 days after the SOC was issued or within one year after the March 2003 rating decision. Therefore, the March 2003 rating decision is final. 38 U.S.C. §§ 7104, 7105. The Veteran requested to reopen his claims of service connection for his right hand disability and bilateral hearing loss in February 2006. A July 2007 rating decision denied the claim. The Veteran timely appealed the July 2007 rating decision. A March 2010 Board decision granted reopening the claim of bilateral hearing loss after finding new and material evidence was received. The Veteran's petition to reopen his previously denied claim of entitlement to service connection of a right hand disability was remanded to the Appeals Management Center (AMC) for additional evidentiary development. In March 2012, the right hand disability claim returned to the Board and at that time, the Veteran's petition to reopen his claim of entitlement for a right hand disability was granted and the claim was once again remanded to the AMC for additional evidentiary development. The issue of the Veteran's right hand disability was remanded by the Board again in February 2013 to obtain Social Security Administration (SSA) records and subsequently returned to the Board again in a June 2013. I. Right Hand Disability The June 2013 Board decision denied the Veteran's right hand disability claim after considering all the relevant evidence of record and ultimately found that the preponderance of the evidence weighed against a finding of an etiological relationship between the Veteran's right hand disability and his military service. Pertinent evidence of record in June 2013 consisted of service treatment records (STRs), VA and private treatment records, VA examinations in February 2002 and April 2012, a February 2010 Board hearing, and the Veteran's statements. In June 2013, the Board considered the Veteran's statements that he had injured his right hand when a truck door was slammed on it during service. The Board also considered the Veteran's reports that his arthritis was contributed to by the many times he had to sleep on the ground while in the field for camps throughout the years and that he had picked up many heavy items over the years in the Reserves. The STRs revealed that in May 1978, the Veteran had a right hand injury as he described. The Board noted that the STR indicated he was treated for contusion to the 3rd and 4th fingers but that x-rays taken at the time were negative. The Board had also noted numerous in-service examination reports from February 1960 through September 1996 that did not show any complaints or clinical abnormalities for the right hand. The Board noted a September 1996 periodic non-flying examination report that revealed the Veteran's upper extremities were clinically normal. During the February 2002 VA examination, there were no complaints or diagnosis of a right hand disability made. In June 2013, the Board also acknowledged an undated letter from a private physician, Dr. J.S., which noted the Veteran suffered from osteoarthritis of the right hand and that it was the result of trauma that took place while he was in the military. In the April 2012 VA examination, the Veteran was diagnosed with right hand degenerative joint disease with carpal tunnel, status post-surgical with residual score. During the April 2012 VA examination, the Veteran reported he experienced tingling and numbness in both hand and fingers in 1985 when he was diagnosed with bilateral carpal tunnel and underwent surgery. After examination, the April 2012 VA examination opined that the Veteran's degenerative joint disease in the right hand was a natural age-related progression of the disease over a period of time and was not caused by the Veteran's injury to his 3rd and 4th digits during military service. The June 2013 Board decision is final. Evidence added to the record since June 2013 relating to the right hand disability consists of the September 2016 DRO hearing, October 2017 Board hearing, and the Veteran's statements regarding the in-service injury to his right hand. The Board notes there were additional VA and private treatment records associated with the record. However, these treatment records were either copies of records already considered in June 2013 or are not pertinent to the Veteran's right hand disability. The Veteran's repeated assertions concerning the incurrence and etiology of his right hand disability in the September 2016 DRO hearing, October 2017 Board hearing, and the Veteran's statements in subsequent correspondences in July 2013, June 2014, November 2014, and June 2015 as well as his statements in the October 2014, April 2015, and March 2017 Notice of Disagreement forms, although new, are reiterative of evidence already of record. Critically, the recently received evidence documents the Veteran's contentions of in-service incurrence and continuing symptomatology cannot be considered "material" because it is cumulative of the evidence previously of record. As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156. The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for a right hand disability is not reopened. II. Bilateral Hearing Loss After the March 2010 Board decision granted reopening the claim of bilateral hearing loss, the Board denied the claim for entitlement to service connection for bilateral hearing loss after finding the preponderance of the evidence was against a finding that the left ear hearing loss was related to service or was diagnosed within one year of the Veteran being on active duty for more than ninety days and the Veteran did not have right ear hearing loss utilizing VA standards. Pertinent evidence of record in March 2010 consisted of STRs, a February 2002 VA examination, a January 2007 VA examination (conducted on December 21, 2006), VA and private treatment records, and the Veteran's statements. The March 2010 Board decision noted that the Veteran's STRs and August 1960 service separation medication examination were negative for hearing loss. The Board noted there was no indication of trauma or injury involving the Veteran's ears in the STRs during the Reserves and that a May 1975 enlistment medical examination during the Veteran's Reserves service indicated the Veteran's hearing in puretone thresholds were the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 10 15 10 0 0 In a February 2002 VA examination, the examiner noted the Veteran's reports of decreased hearing but that on examination, there were grossly normal findings regarding his hearing acuity. At the January 2007 VA examination, the Veteran complained of decreased hearing due to service noise exposure to include communications, aircraft, and explosions. The Veteran indicated that he was a police officer in civilian life. The Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 15 15 LEFT 10 10 15 35 50 Speech recognition scores were 100 percent bilaterally. The examiner diagnosed the Veteran's hearing as being normal to moderately impaired bilaterally. The examiner indicated that she had reviewed the Veteran's claims file. She opined that the Veteran's hearing loss was not related to active service; further citing that the Veteran's hearing was normal 15 years after his period of active service and there was no demonstration of high frequency notching suggestive of hearing changes due to noise recorded in the 1975 examination. Pertinent evidence received since March 2010 consists of private treatment records from Wake Ear, Nose, and Throat (ENT) Specialists showing the Veteran has bilateral hearing loss for VA purposes, a September 2016 DRO hearing, an October 2017 Board hearing, and a November 2017 letter from a private medical provider, Dr. P.G., that noted the Veteran's noise exposure during his military service from 1960 to 2000 and opined that it was at least 50 percent that the Veteran's hearing loss was a result of his service in the Air Force from 1960 to 2000. The Board finds that new and material evidence has been presented to reopen the claim. Specifically, private treatment records showing the Veteran now has bilateral hearing loss for VA purposes and the November 2017 letter providing a positive nexus opinion, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of current bilateral hearing loss for VA purposes and evidence that hearing loss may be related to active service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 117. Service Connection Bilateral Hearing Loss Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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), citing Hanson v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, sensorineural hearing loss is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, including hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. However, as indicated below, there are no records of such, and therefore, the presumption is inapplicable. Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the Veteran was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C. § 101(23)(A). Reserves includes the National Guard of the United States. 38 U.S.C. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6(d)(4). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the Veteran had a chronic disorder in service or during an applicable presumptive period, and that the Veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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 (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Factual Background As noted above, the Veteran was provided a VA audiological examination in December 2006. The December 2006 VA examiner opined that the Veteran's hearing loss was not related to active service; further citing that the Veteran's hearing was normal 15 years after his period of active service and there was no demonstration of high frequency notching suggestive of hearing changes due to noise recorded in the 1975 examination. However, the Veteran has consistently reported continued noise exposure during his Reserve periods of service. A review of the STRs revealed there were several audiometer readings that showed worsening hearing loss and indications of hearing loss during such periods of service. Specifically, in December 1975, the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 30 30 30 LEFT 40 30 35 30 30 In August 1979, the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 25 25 LEFT 30 35 15 25 35 In March 1983, the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 25 LEFT 20 15 15 15 25 In February 1987, the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 22 24 21 28 LEFT 28 18 22 24 24 In February 1991, the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 15 15 5 10 5 10 30 30 In September 1996, the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 20 30 LEFT 10 10 10 20 40 The Board finds the December 2006 VA examination is inadequate since the examiner did not address the evidence of hearing loss shown in military reserve records and did not provide an opinion as to whether the Veteran's hearing loss is related to the Veteran's Reserves military service. As the opinion is inadequate, the examination cannot serve as the basis of a denial of entitlement to service connection. January 2015 and February 2016 private audiological evaluations from Wake ENT Specialists noted the Veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 35 45 LEFT 20 25 35 50 65 The Board notes that the January 2015 and February 2016 private audiological evaluations from Wake ENT Specialists show that the Veteran has impaired hearing considered to be a disability by the VA. The Board reiterates that the November 2017 letter from a private medical provider, Dr. P.G., noted the Veteran's noise exposure during his military service from 1960 to 2000 and opined that it was at least 50 percent that the Veteran's hearing loss was a result of his service in the Air Force from 1960 to 2000. As there are no adequate contrary opinions of record and after a review of all the evidence, the Board finds that evidence for and against the claim of entitlement to service connection for bilateral hearing loss disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran. Entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the claim of service connection for a right hand disability is not reopened and the appeal is denied. New and material evidence having been submitted, the claim of service connection for bilateral hearing loss is reopened. To this extent only, the claim is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs