Citation Nr: 18142523 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-23 459 DATE: October 16, 2018 ORDER As new and material evidence has not been received with regard to the previously denied claim for entitlement to service connection for a back condition, the appeal is denied. As new and material evidence has not been received with regard to the previously denied claim for entitlement to service connection for a left ankle condition, the appeal is denied. As new and material evidence has not been received with regard to the previously denied claim for entitlement to service connection for a right ankle condition, the appeal is denied. As new and material evidence has not been received with regard to the previously denied claim for entitlement to service connection for a right knee condition, the appeal is denied. As new and material evidence has not been received with regard to the previously denied claim for entitlement to service connection for a right shoulder condition, the appeal is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable rating for an epidermal inclusion cyst in the scrotal area is remanded. FINDINGS OF FACT 1. The Veteran’s claims for entitlement to service connection for a back condition, left ankle condition, right ankle condition, right knee condition, and right shoulder condition were last denied in a November 1995 rating decision; the Veteran did not file a timely notice of disagreement with respect to that decision or submit any pertinent evidence within the appeal period, and the decision became final. 2. Evidence added to the record subsequent to the expiration of the appeal period is cumulative or redundant of evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a back condition, left ankle condition, right ankle condition, right knee condition, and right shoulder condition. 3. The Veteran does not have a current left hip disability. 4. The Veteran’s tinnitus is related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for entitlement to service connection for a back condition, left ankle condition, right ankle condition, right knee condition, and right shoulder condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1990 to October 1995. This matter comes before the Board of Veterans’ Appeals (Board) from the September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. I. VA’s Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). The Veteran has participated in the Fully Developed Claim Program (FDC), which is designed to expedite the claims process, and thus received complete VCAA notice in conjunction with his 2013 application for benefits. See VA Form 21-526EZ; Veterans Benefits Administration (VBA) Fast Letter 12-25, The Fully Developed Claim Program, November 8, 2012. The duty to notify was satisfied prior to the RO’s initial decision by way of notification provided to the appellant with his Fully Developed Claim Form (VA 21-526EZ) that informed him of his duty and the VA’s duty for obtaining evidence. The notice that accompanies the Fully Developed Claims form informed the appellant of what evidence is required to substantiate a claim for service connection and of the appellant’s and VA’s respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings in the event that service connection is established. Thus, the notice that is part of the claim form submitted by the appellant satisfies the VCAA duty to notify. The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VA examination has been secured in connection with the current claim satisfying VA’s duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). III. Analysis The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Whether new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for a back condition, left ankle condition, right ankle condition, right knee condition, and right shoulder condition The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection for a back condition, left ankle condition, right ankle condition, right knee condition, and right shoulder condition. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to agency decision makers. 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). Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). VA must review all of the evidence submitted since the last final decision on any basis in order to determine whether the claim may be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s original claim seeking compensation for these issues was last denied in a November 1995 rating decision because at the time of the Veteran’s claim the Regional Office found that there was no evidence of chronic disabilities. The Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran requested to reopen this claim in October 2013. In September 2014, the RO denied the Veteran’s claim stating that the evidence received was not new and material. Evidence added to the record since the November 1995 rating decision includes service treatment records that were already associated with the file at the time of the November 1995 rating decision. Additionally, medical treatment records were associated with the Veteran’s claims file. The Board finds that this latter evidence is new, as it has never previously been before agency decision makers. However, the Board finds that this evidence is not material, as it does not relate to an unestablished fact necessary to substantiate the claim. Specifically, the Veteran’s treatment records do not reveal that the Veteran has a current diagnosis of any of the disabilities on appeal or relate any of these disabilities to his military service. Accordingly, the Board finds this evidence does not raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a back condition, left ankle condition, right ankle condition, right knee condition, and right shoulder condition, and the claim is denied. 2. Entitlement to service connection for a left hip condition The Veteran contends that his left hip condition is related to his military service. As an initial matter, the Board notes that the Veteran’s service treatment records do not contain any treatment or complaints of a left shoulder injury. In May 2018, the Veteran’s representative submitted an informal hearing presentation stating that medical evidence received on October 2, 2013 notes a left hip condition related to the Veteran’s military service. However, the only document received on that day is the Veteran’s fully developed claim for the issues currently on appeal. Additionally, there is no medical evidence demonstrating that the Veteran currently has a left hip disability diagnosis, let alone one that is related to his military service. Therefore, as no current disability of the left hip is present, entitlement to service connection is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to his military service. The Veteran’s military occupational specialty was military police and the Veteran has stated that he was exposed to repeated and excessive noise while in the military. Additionally, the Veteran was awarded several firearms related badges and awards during his military service. In January 2014, the Veteran underwent a VA audiology examination. The examiner noted that the Veteran reports recurrent tinnitus with a gradual onset in the mid-1990s. The examiner opined that it is less likely than not that the Veteran’s tinnitus is a symptom associated with the Veteran’s hearing loss as the Veteran has normal bilateral hearing sensitivity. However, the examiner stated that it is at least as likely as not (50% probability or greater) that the Veteran’s tinnitus is caused by or a result of military noise exposure. The examiner explained that although there is no evidence of onset of tinnitus occurring during the Veteran’s military service, the examiner’s opinion is based on the Veteran’s reports regarding his onset of tinnitus. Therefore, based on the Veteran’s lay statements and the January 2014 VA examination rendering a positive nexus between the Veteran’s current tinnitus and military service, the Board finds that entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that his epidermal inclusion cyst in the scrotal area warrants a compensable rating. In February 2014, the Veteran underwent a VA examination to determine the severity of this disability. However, since that examination, the Veteran has submitted lay statements noting that his pain relating to his epidermal cyst has increased and that it is causing additional medical issues. Additionally, in January 2018, the Veteran submitted private medical records, possibly indicating that this disability has worsened. Therefore, the Board finds that a remand is necessary for the Veteran to undergo a VA examination to determine the current severity of his service connected epidermal inclusion cyst. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service connected epidermal inclusion cyst in the scrotal area. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel