Citation Nr: 18148906 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-24 499A DATE: November 8, 2018 ORDER The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for right shoulder sprain is denied. The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for lower back muscle strain (claimed as pulled muscle), is denied. The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for left knee osteoarthritis (claimed as left knee sprain), is denied. The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for headaches, is denied. New and material evidence having been received, reopening of the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for bilateral tinnitus is denied. REMANDED Entitlement to service connection for bunion of the left foot is remanded. Entitlement to service connection for bunion of the right foot is remanded. Entitlement to service connection for left sciatic radicular pain is remanded. Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. In an unappealed January 2012 rating decision, the Regional Office (RO) denied entitlement to service connection for right shoulder sprain, lower back muscle strain, left knee osteoarthritis, headaches, and PTSD. 2. The evidence associated with the claims file subsequent to the January 2012 rating decision is cumulative or redundant of the evidence previously of record, or does not relate to an unestablished fact necessary to substantiate the claims for right shoulder sprain, lower back muscle strain, left knee osteoarthritis, and headaches. 3. The evidence associated with the record subsequent to the January 2012 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 4. The Veteran does not have a bilateral hearing loss disability for VA purposes. 5. The Veteran does not have tinnitus that manifested in service or within one year thereafter or that is otherwise related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen a claim of entitlement to service connection for right shoulder sprain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for lower back muscle strain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for left knee osteoarthritis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has not been received to reopen a claim of entitlement to service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2018). 6. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 7. Tinnitus was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1981 to November 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Claims to Reopen – Right Shoulder, Lower Back, Left Knee, Headaches In a January 2012 rating decision, the Veteran was denied entitlement to service connection for a right shoulder sprain, lower back muscle sprain, left knee sprain, and headaches on a finding that the disabilities were not related to active service. In this regard, it was determined the right shoulder sprain, lower back sprain, left knee sprain, and headaches were not caused by or related to active service. The Veteran did not appeal that decision. The pertinent evidence of record at the time of the January 2012 rating decision included the following: the Veteran’s service treatment records (STRs); post-service treatment records; and a VA examination. The pertinent evidence that has been received since the January 2012 rating decision includes a letter from Dr. P.Y., indicating the Veteran has current diagnoses for a low back disability, migraine headaches, and a left knee disability. The Board finds that the evidence received since the January 2012 decision is cumulative and redundant of the evidence previously of record, and that it does not relate to the reason the claim was originally denied. In this regard, the Veteran has not submitted any evidence indicating that his claimed right shoulder, low back, left knee, and headache disabilities are etiologically related to his active service or were otherwise aggravated by his active service. Accordingly, the Board must conclude that new and material evidence to reopen the claims for service connection for a right shoulder disability, low back disability, left knee disability, and headaches has not been received and reopening of the claim of entitlement to service connection for a right shoulder disability, low back disability, left knee disability is not warranted. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Claim to Reopen - PTSD In a January 2012 rating decision, the Veteran was denied entitlement to service connection for PTSD based on a finding that there was no evidence of a PTSD diagnosis, and that the disability was not related to service. The Veteran did not appeal that decision. The pertinent evidence received since the January 2012 rating decision includes medical evidence indicating that the Veteran has a diagnosis of PTSD, and that PTSD may be etiologically related to his active service. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. Accordingly, reopening of the claim of entitlement to service connection PTSD is warranted. 3. Service Connection – Bilateral Hearing Loss Disability and Tinnitus I. Law and Regulations Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish a right to compensation for a present disability, a Veteran must show: “(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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309 (a), including sensorineural hearing loss and tinnitus may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations 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). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Analysis – Bilateral Hearing Loss Disability According to the Veteran’s DD Form 214, he served approximately 3 years in the Army, serving primarily as a utility helicopter repairperson. He also obtained a Sharpshooter Badge for an M-16 and hand grenades. Therefore, the Board finds that the Veteran sustained acoustic trauma during active service. There is a difference between hearing loss and hearing loss disability. VA regulations establish when such hearing loss reaches the level of disability for VA purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs do not document any complaints, diagnosis, or treatment for bilateral hearing loss disability. A review of the STRs does not show that the Veteran had hearing loss for VA purposes at any time during his active service. See 38 C.F.R. § 3.385. In February 2015, the Veteran was afforded a VA audiology examination. At that time, the Veteran reported in-service noise exposure. However, the Veteran was not found to have bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. In the Veteran’s right ear, the examiner found the Veteran to have clinically normal hearing for VA purposes. The Veteran’s left ear hearing acuity could not be tested. The examiner opined that any current hearing loss is less likely as not (less than 50/50 probability) caused by or a result of noise exposure in the military. The examiner indicated that the 1981 enlistment and five following audiograms through 1984 indicate normal hearing bilaterally without significant threshold shift. Records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. There was no record of complaint or treatment of the claimed condition in the service records. The Institute of Medicine concluded that based on current knowledge of cochlear physiology “there was not sufficient evidence from the longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” Therefore, it was stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was unlikely. Based on the objective evidence (audiograms), an audiologist can conclude that there is no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of the Veteran’s military service, including noise exposure. Im sum, following his separation from service, there is no indication in the record to suggest that the Veteran sought treatment for bilateral hearing loss disability, and there is no evidence of bilateral hearing loss disability within one year of his military service. Additionally, the Board notes that while the Veteran is competent to report symptoms of decreased hearing acuity, he is not competent to diagnose himself with hearing loss for VA purposes. A diagnosis of hearing loss for VA purposes requires medical expertise, clinical testing, and knowledge that are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis in this case. The VA examiner provided a probative opinion that there is no etiological connection to service For a disability to be service connected, it must be present at the time a claim for .VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the Board notes that there are specific requirements for what is considered hearing loss for VA compensation purposes, and a review of the record fails to show that the Veteran has bilateral hearing loss disability for VA compensation purposes. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and that entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. 49. III. Analysis – Tinnitus In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for tinnitus. As noted above, an essential element for establishing service connection is competent evidence of a current disability. Shedden, supra; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this matter, the evidence of record establishes that the Veteran has not been diagnosed as having tinnitus at any point since he filed his claim for service connection for such a disability in December 2013. The evidence includes VA examinations reports and outpatient records. A February 2015 VA examination report indicates that the Veteran denied tinnitus or ringing in the ears or other ear noises. The Veteran did not report recurrent tinnitus. Pertinent VA outpatient records likewise do not reflect a current tinnitus diagnosis. Based on this evidence, the Board finds that neither tinnitus, nor manifestations sufficient to identify the disease entity, was shown during service. The pertinent regulations require that manifestations are “noted” in the service records and that is not case in this instance. Therefore, while tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of tinnitus were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Inasmuch as the first element of the claim for service connection for tinnitus has not been established, i.e., competent evidence of a disability at any point since the Veteran filed his December 2013 claim for service connection, the weight of evidence is against the claim on this basis and the claim must be denied. Shedden, 381 F. 3d at 1167. It follows that no further discussion of the other essential elements of a service connection claim is necessary. 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 in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Service Connection – Bilateral Bunions The Board finds that additional development is required before the remaining claims on appeal can be decided. The Board notes that the Veteran has consistently asserted that he was diagnosed with and surgically treated for bilateral bunions of the feet while in service. In that regard, he stated that he was injured and treated for his bunions while on active duty in Germany. Indeed, the Veteran submitted a letter from his private treatment provider, Dr. P.Y. indicating that his bilateral bunion disability “should qualify this condition for service connection.” In light of the evidence of record, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current bunion disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service Connection – Left Sciatic Radicular Pain The Board notes that the Veteran has consistently asserted that he has left sciatic radicular pain as due to his active service. Indeed, the Veteran’s service treatment records show that the Veteran complained of and was treated for the lower left quadrant and a sharp pain in the left side. In light of the Veteran’s statements, the service treatment records, and his current diagnosis of left sciatic radicular pain, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current left sciatic radicular pain disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Service Connection – PTSD The Board notes that the Veteran has consistently asserted that he had PTSD caused by his experiences while in service. A review of the record shows that the Veteran was evaluated for his PTSD by a private treatment provider, Dr. W.A. In that evaluation, Dr. W.A. stated that the Veteran’s PTSD symptomatology “as likely as not began in childhood and were exacerbated by events that took place during [the Veteran’s] military service.” In light of the Veteran’s statements, Dr. W.A.’s psychological evaluation of the Veteran, and his current psychological diagnoses, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present acquired psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s bunions of the bilateral feet. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner should be sure to address the April 2015 private treatment provider’s letter noting that the Veteran’s bilateral bunions should “qualify for service connection.” Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral bunions are etiologically related to service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s left sciatic radicular pain. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner should be sure to address the April 2015 private treatment provider’s letter noting that the Veteran’s left sciatic radicular pain is likely related to the military. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left sciatic radicular pain is etiologically related to service. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left sciatic radicular pain was caused by or chronically worsened by any service-connected disability. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present acquired psychiatric disability, to include PTSD and depressive disorder not otherwise specified. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on a review of the record and an evaluation of the Veteran, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, and proximate thereto. Once all psychiatric disabilities have been identified, the examiner should provide the following findings: Does the Veteran have an acquired psychiatric disability that clearly and unmistakably existed prior to his active service? For any disability found to clearly and unmistakably exist prior to the Veteran’s active service, was that clearly and unmistakably NOT aggravated by service? In forming the opinion, the examiner must note that the Veteran’s lay statements alone are not a sufficient basis with which to support a finding that a disability clearly and unmistakably existed prior to service. With regard to any acquired psychiatric disability determined to NOT clearly and unmistakably exist prior to the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability is etiologically related to the Veteran’s active service. The rationale for all opinions expressed must be provided. 5. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 6. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel