Citation Nr: 18146934 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-30 325 DATE: November 2, 2018 ORDER Service connection for glaucoma is denied. Service connection for bilateral hearing loss is denied. New and material evidence has not been received to reopen the claim for entitlement to service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or porphyria cutanea tarda (PCT), due to herbicide exposure, and the request to reopen is denied. New and material evidence has been presented, and the claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for tinnitus is remanded. The reopened claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD is remanded. FINDINGS OF FACT 1. The Veteran does not have currently diagnosed glaucoma. 2. The Veteran does not have hearing loss for VA compensation purposes. 3. In an unappealed rating decision issued in August 2007, the RO denied the Veteran's claim for service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT. 4. The evidence associated with the claims file subsequent to the August 2007 denial includes evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT. 5. In an unappealed rating decision issued in August 2007, the RO denied the Veteran's claim for service connection for PTSD. 6. The evidence associated with the claims file subsequent to the August 2007 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection, is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability, to include PTSD and MDD. CONCLUSIONS OF LAW 1. The criteria for service connection for glaucoma have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86(a), Diagnostic Code 6100 (2018). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86(a), Diagnostic Code 6100 (2018). 3. The evidence received since the August 2007 denial of service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT is not new and material, and the claim for service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 4. New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability, to include PTSD and MDD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1970. In March 2018, the Veteran withdrew his request for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2018). In March 2018, the Veteran requested an additional 60 days to submit evidence in support of his appeal. This request was subsequently granted. In May 2018, the Veteran, through his representative, again requested an additional 60 days to submit evidence in support of his appeal. As of July 2018, 60 days have passed and the claim is ready for appellate review. Claims to Reopen As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156 (a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156 (a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT, and if so, whether the reopened claim should be granted. In an August 2007 rating decision, the RO denied service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT, based on a finding that the evidence showed only a congenital skin problem that was temporarily aggravated in service by shaving without any disability medically related to herbicide exposure, and because the evidence did not show a diagnosis of PCT or chloracne that manifested to a compensable degree within one year of the Veteran’s departure from Vietnam. The Veteran did not file an appeal and the decision became final. In September 2009, the Veteran filed a petition to reopen his claim for service connection for a skin condition related to Agent Orange exposure. The evidence added to the record since the August 2007 rating decision includes VA treatment records showing that the Veteran continues to be treated for folliculitis of the back and chest and pseudofolliculitis barbae. They also show that he uses a prescribed cream for acne. The newly submitted evidence does not show that the Veteran’s pseudofolliculitis barbae or any other skin condition was incurred or permanently aggravated in service, or that he has a current skin condition, including PCT or chloracne, related to herbicide exposure in service. Absent evidence showing that the Veteran has a current skin disorder related to his active military service, including exposure to herbicides therein, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a skin condition of the face and back, to include pseudofolliculitis barbae/acne folliculitis barbae or chloracne or PCT is not reopened. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and MDD, and if so, whether the reopened claim should be granted. In an August 2007 rating decision, the RO denied service connection for PTSD because the Veteran’s claimed in-service stressors of being exposed to arms fire and mortars and handling dead bodies in the Da Nang mortuary had not been confirmed. The Veteran did not file an appeal and the decision became final. In September 2009, the Veteran filed a petition to reopen his claim for service connection for PTSD. The pertinent evidence added to the record since the August 2007 rating decision includes a January 2010 statement from the Veteran, detailing his experiences in Vietnam during and after the Tet Offensive, including his experiences while assigned to the Da Nang mortuary. See January 2010 statement from the Veteran. The evidence also includes VA outpatient treatment records with reports from the Veteran of psychiatric symptoms related, in part, to stressful experiences in service. In addition, the evidence includes a November 2013 VA examination showing that the Veteran reported stressful experiences during active duty in Vietnam and that he was diagnosed with MDD. The newly submitted evidence is not cumulative or redundant of evidence already of record. Furthermore, the evidence relates to a fact necessary to substantiate the claim, i.e. whether the Veteran has a current psychiatric disability related to service, including stressful experiences in Vietnam. Together, with the Veteran’s DD-214, showing that he served on active duty in Vietnam from December 1967 to December 1968 (during the Tet Offensive) and received the Vietnam Service Medal and the Vietnam Campaign Medal w/60 Device, the newly submitted evidence (statement from the Veteran, VA treatment records and November 2013 VA examination report) is sufficiently supportive of the claim to raise a reasonable possibility of substantiating the claim. The evidence thereby satisfies the low threshold requirement for new and material evidence; and, the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The additional evidence demonstrates that further development is required before the claim may be considered on the merits. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see 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. 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). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Those "chronic" disorders include sensorineural hearing loss and tinnitus. In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then 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. 38 C.F.R. § 3.303 (d). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Section 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 3. Entitlement to service connection for glaucoma, to include as due to herbicide exposure Service treatment records do not show treatment for or complaint of glaucoma. Post-service treatment records show that during VA outpatient treatment in 2001 and 2002, the Veteran reported a history of glaucoma. However, the records do not show treatment for a diagnosis of glaucoma since the Veteran filed his claim for service connection in September 2009. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). As there is no evidence of currently diagnosed glaucoma, service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim.") VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. Accordingly, service connection cannot be granted for symptoms of a disability such as glaucoma, standing alone. While the Board acknowledges the Veteran's argument in support of his claim, he is not medically qualified to diagnose himself with glaucoma. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. In reaching this conclusion, 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 here. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57 (1990). 4. Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection is warranted for bilateral hearing loss because it is related to noise exposure during active duty. Service treatment records are negative for any evidence of hearing loss. Nevertheless, the Veteran reports that he was exposed to gunfire and mortars during the Tet Offensive in Vietnam. His DD-214 shows that he received the Vietnam Campaign Medal w/60 Device. Therefore, his reports of noise exposure during active duty are conceded. Furthermore, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran was afforded VA audiology examination in February 2010. The level of hearing loss in the left and right ears measured during the examination does not meet the requirements for a current disability under VA's regulations codified at 38 C.F.R. § 3.385. Simply stated, while the Veteran's exposure to loud noise during service is conceded, his hearing is still within the range of normal for VA purposes. While the Veteran is competent to report current hearing loss symptoms and a continuity of symptoms since service, it would require medical expertise to say that he has hearing loss that meets the specific thresholds of 38 C.F.R. § 3.385. See 38 C.F.R. § 4.85 (a) (2018) (requiring that examinations for hearing impairment for VA purposes be conducted by state licensed audiologists). There is no evidence that the Veteran possesses such expertise. Hence, he would not be competent to say that his hearing loss meets the thresholds of 38 C.F.R. § 3.385. Accordingly, the Board finds that as the weight of the evidence is against a finding that there is a current hearing loss for VA compensation purposes, this claim must be denied. 38 U.S.C. § 5107 (b) (2012). REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. During his February 2010 VA examination, the Veteran reported occasional tinnitus that started during his late 40s, approximately 25 years after his military service. Based on the Veteran’s reports, the examiner opined that his tinnitus was not due to noise exposure during military service, and rather, was at least as likely as not related to his hearing loss. The examiner offered no further explanation for his negative opinion. The Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The February 2010 examiner did not provide an adequate opinion as to whether the tinnitus identified after service was related to a disease or injury in service. As such, the Board finds that a remand for another medical opinion as to the etiology of any current tinnitus is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2018). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD is remanded. The Veteran has reported that he has PTSD, related to experiences during active duty in Vietnam, including being exposed to arms fire during the Tet Offensive and working in the mortuary and handling dead bodies in Da Nang after the Tet Offensive. During a November 2013 VA examination, the examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD. However, he did diagnose the Veteran with MDD. The examiner opined that, as there was no evidence of mental health problems or treatment in service, the currently diagnosed MDD was not related to service. Rather, the examiner opined that the Veteran’s MDD symptoms were related to his history of difficulty finding adequate employment after military service, his wife's health, and the death of the Veteran's best friend, which reportedly occurred after the Veteran's discharge from military service. The only rationale for why the Veteran’s MDD was more likely related to post-service stressors than his reported in-service stressors given by the examiner was that there is no evidence of mental health treatment in service. As noted above, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The November 2013 examiner failed to provide an adequate opinion as to whether the psychiatric disability identified after service was related to a disease or injury in service or to the Veteran's reports of continuous symptoms since service. In fact, the examiners did not adequately address the Veteran's lay statements of continuity. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Board also notes that the examiner did not give an opinion as to the etiology of the PTSD diagnosed earlier during the appeal period during VA outpatient treatment. Therefore, the Board finds the November 2013 VA examiner’s opinion inadequate for evaluation purposes, and as such, a remand for a new examination and medical opinion as to the etiology of any current psychiatric disability is necessary. The Board also notes that the VA treatment records currently associated with the claims file are only current through 2013. Any outstanding VA and private treatment records should be obtained and added to the claims file on remand. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, afford the Veteran a VA examination to determine the nature and etiology of any current tinnitus. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that that any current tinnitus originated while the Veteran was serving on active duty or is otherwise related to the Veteran’s conceded noise exposure in service. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. 3. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his psychiatric disorder(s). The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Following interview of the Veteran and review of the claims folder, the examiner is requested to provide an opinion on the following questions: a) If the examiner finds that the Veteran meets the criteria for a PTSD diagnosis, he/she should specifically identify which stressor or stressors are linked to the PTSD diagnosis. b) If the examiner finds that the Veteran manifests an acquired psychiatric disorder other than or in addition to PTSD, he/she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such currently diagnosed psychiatric disorder was first manifested in service, is causally related to event(s) in service or is otherwise related to service. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. After completing the above, and any other development deemed necessary; readjudicate the Veteran's remaining claims based on the entirety of the evidence. If any benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case, and the case should then be returned to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel