Citation Nr: 18145003 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-32 793 DATE: October 25, 2018 ORDER Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a neck disorder is granted. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder is granted. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for right upper extremity radiculopathy is denied. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran had active service from June 1964 to June 1967. 2. Service connection for a neck disorder, an acquired psychiatric disorder, and a left shoulder disorder, was denied in a July 2004 rating decision; that decision was not appealed and it became final. 3. Evidence received since the July 2004 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims of entitlement to service connection for a neck disorder and an acquired psychiatric disorder. 4. Evidence received since the July 2004 rating decision includes evidence that is cumulative or redundant of the evidence previously of record and is not sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left shoulder disorder. 5. Service connection for right upper extremity radiculopathy was denied in a December 2006 rating decision; that decision was not appealed and it became final. 6. Evidence received since the December 2006 rating decision includes evidence that is cumulative or redundant of the evidence previously of record and is not sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of entitlement to service connection for right upper extremity radiculopathy. 7. Bilateral hearing loss was not shown in service and is not casually or etiologically related to service. CONCLUSIONS OF LAW 1. The July 2004 rating decision denying service connection for a left shoulder disorder, depression, and a neck disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 2. The December 2006 rating decision denying service connection for right upper extremity radiculopathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 3. New and material evidence has been received sufficient to reopen the claim of entitlement for service connection a neck disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2018). 4. New and material evidence has been received sufficient to reopen the claim for entitlement for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2018). 5. New and material evidence has not been received sufficient to reopen the claim of entitlement for service connection a left shoulder disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2018). 6. New and material evidence has not been received sufficient to reopen the claim of entitlement for service connection for right upper extremity radiculopathy. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2018). 7. Bilateral hearing loss was not incurred in or caused by active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims Regardless of the actions of the agency of original jurisdiction (AOJ), given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). New and material evidence is defined by regulation. 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. 38 C.F.R. § 3.156 (a). The phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for service connection for a left shoulder disorder, neck disorder, and acquired psychiatric disorder were originally denied in a July 2004 rating decision. Evidence included lay statements from the Veteran, service treatment records (STRs), VA treatment records, VA examinations, letters and letters from private physicians. He did not appeal the decision and it became final. The Veteran’s claim for service connection for right upper extremity radiculopathy was originally denied in a December 2006 rating decision. Evidence included the records cited above as well as additional VA examinations. He did not appeal the decision and it became final. Neck Disorder The claim for service connection for a neck disorder was denied for lack of a current diagnosis. At the time of the prior final denial, VA and private medical records failed to note any chronic neck disability. As such, the claim was denied for lack of a current disability, and any evidence submitted following the prior final denial documenting a neck disability would be material. VA medical records note a diagnosis of cervical spondylosis following an October 2010 MRI, as well as degenerative disc disease. Given that a current diagnosis was an unestablished fact necessary to substantiate the claim, and the documents referenced above are new, the application to reopen will be granted. The appeal is granted to this extent. Acquired Psychiatric Disorder The claim for service connection for an acquired psychiatric disorder (also claimed as depression) was denied for lack of an in-service incurrence and medical nexus. At the time of the prior final denial, private medical records and a VA examiner found that the Veteran was treated for depression and had major depression with suicidal ideations. As such, the first element of service connection was met. However, his STRs did not show any in-service events, injuries, treatment, or diagnosis of any psychiatric disorder. Further, the December 1998 examiner found that his current disorder was not caused by service, nor was it caused by a service connected disability. Therefore, any evidence submitted following the prior final denial that substantiated either the in-service incurrence or medical nexus element of service connection would be material. Relevant evidence submitted since the prior final denial include VA treatment records and an August 2006 VA examination. The 2006 VA examiner noted that while there was a history of psychiatric issues that began prior to the Veteran’s military service, it was more likely than not that he experienced mood instability secondary to his general medical condition, and that he gave a plausible account of the progression of his medical instability that corresponded with his pain and inability to function physically. The examiner diagnosed him with mood disorder secondary to general medical condition. It is unclear if the examiners description of the Veteran’s “general medical condition” included his service-connected disabilities. However, there is evidence that physical conditions, potentially including service-connected disabilities, are etiologically related to or aggravated a current acquired psychiatric disability. Given that a medical nexus was an unestablished fact necessary to substantiate the claim, and the documents reference above are new, the application to reopened will be granted. The appeal is granted to this extent. Left Shoulder Disorder The claim for service connection for a left shoulder disorder was denied due to lack of an in-service incurrence and medical nexus. At the time of the prior final denial, private medical records noted current diagnoses of bursitis of the left shoulder and nerve impingement syndrome of the left shoulder. As such, the first element of service connection – a current disability – was met. However, a review of his STRs did not show any in-service incurrence. Similarly, no medical nexus was found between any event in service, or as secondary to the Veteran’s service connected right shoulder disability. Therefore, any evidence submitted following the prior final denial that substantiated either the in-service incurrence or medical nexus element of service connection would be material. Relevant evidence submitted since the prior final denial includes VA medical records, September 2006 VA X-rays, and March 2006 and July 2013 VA examinations. The medical records did not contain and the examiner did not provide any information substantiating the elements of an in-service incurrence or medical nexus. The July 2013 VA examiner found that the Veteran’s shoulder condition was distinctly unrelated to his service connected disability. Given that evidence submitted does not substantiate either of these elements, the claim to reopen is denied. Right Upper Extremity Radiculopathy The claim for service connection for right upper extremity radiculopathy was denied for lack of an in-service incurrence or medical nexus. At the time of the prior final denial, a September 2006 VA examiner diagnosed the Veteran with cervical radiculopathy. As such, the first element of service connection was met. However, his STRs did not show any in-service events, injuries, or treatment for radiculopathy. Further, the examiner noted that it was less likely than not that his disability was caused by active service or related to his service-connected right shoulder disability. Therefore, any evidence submitted following the prior final denial that substantiated either the in-service incurrence or medical nexus element of service connection would be material. Relevant evidence submitted since the prior final denial includes VA medical records. No additional evidence has been submitted that details an in-service incurrence or an etiological connection between service or a service-connected disability and his current disability. His diagnosis was for cervical radiculopathy, but the Veteran is not currently service connected for a cervical or neck disorder. Thus, given that the evidence submitted does not substantiate either of these elements, the claim to reopen is denied. Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Bilateral Hearing Loss The Veteran claims he has bilateral hearing loss caused by active service. Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, hearing loss was noted in a March 2013 VA examination. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. Testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 50 50 LEFT 15 20 15 35 40 Speech discrimination scores for the Veteran’s right ear were 94 percent, and for the left ear 96 percent. Therefore, hearing loss is currently shown. Thus, the first element of service connection – a current diagnosis – has been met. Next, the evidence supports a finding of in-service acoustic trauma. Specifically, they Veteran stated during his March 2013 VA examination he has been exposed to auditory trauma from artillery fire. A veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran’s statements are consistent with the nature of his service, as his DD-214 notes his MOS included artillery. Further, there is no evidence of record which tends to contradict the Veteran’s testimony. As such, the second element of service connection has been met. Next, as to continuity, the Veteran has not indicated that he has experienced hearing loss continuously since service. He has not claimed that his hearing loss began during service or in the year following service. There is no medical evidence that records complaints of hearing loss from separation from service to his eventual diagnosis. As such, service connection due to continuity of service connection is not warranted. As for direct service connection, the evidence does not show an etiological connection between his current bilateral hearing loss. A March 2013 VA examiner found that it was less likely than not that his current bilateral hearing loss was caused by active service, in part due to no significant shift in hearing thresholds during military service evidence by entrance and separation examinations. No competent medical evidence has been provided that shows any etiological connection. Given the lack of evidence of either continuous symptoms or an etiological connection, the appeal for service connection is denied. The Board has considered the Veteran’s lay statements that his bilateral hearing loss was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current hearing loss due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND At the time of the prior final denial, the Veteran did not have evidence of a current neck disorder. Although he now has a current diagnosis, he has not been examined to determine whether his current neck disorder was caused by service or proximately due to a service connected disability. Next, following the prior final decision, an August 2006 VA examiner found a positive etiological relationship between the Veteran’s mood disorder secondary to his general medical condition. It is unclear whether this opinion is ascribing the Veteran’s current acquired psychiatric disorders as secondary to his service-connected disabilities, or whether his current acquired psychiatric disorders have been permanently worsened by his service-connected disabilities. Therefore, a VA examination is necessary to determine the etiological relationship between his current acquired psychiatric disabilities and service-connected disabilities. The matter is REMANDED for the following action: 1. Obtain VA clinical records that are not already associated with the claims file. 2. Schedule the Veteran for an examination to determine the etiology of any current neck disorder. The claims file must be made available to the examiner. The report should include a discussion of the Veteran’s documented medical history and assertions and all clinical findings should be reported in detail. The examiner is asked to answer the following questions: (a.) Identify any current neck disorder. (b.) Is the Veteran’s neck disorder at least as likely as not (a 50 percent probability or greater) related to active duty? (c.) Is the Veteran’s neck disorder at least as likely as not (a 50 percent probability or greater) proximately due to a service-connected disability? (d.) The examiner must provide a full rationale for all opinions. 3. Schedule the Veteran for an examination to determine the etiology of any current acquired psychiatric disorder. The claims file must be made available to the examiner. The report should include a discussion of the Veteran’s documented medical history and assertions and all clinical findings should be reported in detail. The examiner is asked to answer the following questions: (a.) Identify any current acquired psychiatric disorder. (b.) Is any current acquired psychiatric disorder at least as likely as not (a 50 percent probability or greater) related to active duty? (c.) Is any current acquired psychiatric disorder at least as likely as not (a 50 percent probability or greater) proximately due to a service-connected disability? (d.) Is any current acquired psychiatric disorder at least as likely as not (a 50 percent probability or greater) permanently worsened beyond its normal course by active service or by his service-connected disabilities? (e.) The examiner is asked to specifically address the findings of the August 28, 2006 VA examiner that the Veteran has a mood disorder secondary to the Veteran’s general medical condition. (f.) The examiner must provide a full rationale for all opinions. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Continued on Next Page These claims 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. 38 U.S.C. §§ 5109B, 7112 (2012). K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel