Citation Nr: 18150021 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-35 325 DATE: November 14, 2018 ORDER Service connection for a left shoulder disorder is denied. Service connection for a right shoulder disorder is denied. Service connection for a neck disorder is denied. Service connection for a vision disorder is denied. New and material evidence having been received, the claim to reopen service connection for bilateral hearing loss is granted. REMANDED Service connection for a low back disorder is remanded. Service connection for vertigo is remanded. Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left shoulder disability. 2. The Veteran does not have a current right shoulder disability. 3. The Veteran does not have a current neck disability. 4. The Veteran does not have a current vision disability. 5. March 1999 and November 2002 rating decisions denied service connection for bilateral hearing loss, finding that the evidence did not show a current hearing loss disability for VA compensation purposes. 6. The Veteran did not timely file a notice of disagreement (NOD) following the March 1999 and November 2002 rating decisions, and new and material evidence was not received during the one-year appeal period following that decision. 7. Evidence received since the November 2002 rating decision relates to an unestablished fact of a current disability that could reasonably substantiate a claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for a visual disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The March 1999 and November 2002 rating decisions denying service connection for bilateral hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. Evidence received since the November 2002 rating decisions is new and material to reopen service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from December 1972 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a low back disorder, neck disorder, right shoulder disorder, left shoulder disorder, vision disorder, vertigo, and denied reopening of service connection for bilateral hearing loss. The RO subsequently granted reopening of service connection for bilateral hearing loss in the April 2016 statement of the case (SOC). The Veteran asserts that VA denied due process because he was not provided a VA examination. Additionally, the Veteran asserts that he did not submit evidence with his claim because he was waiting for VA to request the evidence from him. See December 2015 NOD, July 2016 VA Form 9. The Board need not address the duties to notify and assist regarding the issues of service connection for a low back disorder, vertigo, and bilateral hearing loss, as the issues are being remanded for further development. As for the issues of service connection for a neck disorder, bilateral shoulder disorder, and vision disorder, the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements were satisfied. The Veteran submitted a fully developed claim (FDC) in August 2015. The notice that accompanies the FDC form informed the Veteran what evidence is required to substantiate a claim for service connection, VA and the Veteran’s respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. The October 2015 and the April 2016 SOC also notified the Veteran of the evidence needed to substantiate the claims for service connection. The Veteran also submitted additional evidence in January 2016, during the course of the appeal, which indicates the Veteran had notice of the evidence needed to substantiate the claims for service connection. As the Veteran has been notified of the evidence needed to substantiate the claims for service connection, the Board finds no due process violation and concludes that VA satisfied its duties to notify the Veteran. Additionally, the complete service treatment records and all identified post-service private and VA treatment records are associated with the record. No VA examinations have been provided regarding service connection for a vision problem, bilateral shoulder disorder, and neck disorder; however, the Board finds that no VA examination is required in this case, as there is competent evidence to decide these claims that shows no current disabilities. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeals adjudicated herein, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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. The requirement of a current disability is satisfied when a veteran has a disability at the time he files a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Service Connection for a Left Shoulder Disorder 2. Service Connection for a Right Shoulder Disorder 3. Service Connection for a Neck Disorder 4. Service Connection for a Vision Disorder The Veteran generally contends that service connection is warranted for a left shoulder disorder, right shoulder disorder, neck disorder, and vision disorder because the conditions began or manifested during service. See December 2015 NOD, July 2016 VA Form 9. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran has a current disabilities of the neck, vision, left shoulder, or right shoulder. As for the claimed neck problem, a review of the service treatment records reflects complaints of left-sided neck pain in December 1977, February 1978, and August 1978. Diagnosis was cervical strain and muscle pull for which medication, a soft cervical collar, bed rest for 48 hours, and physical therapy were prescribed. See December 1977, February 1978, and August 1978 service treatment records. However, the evidence does not show that symptoms of neck pain were chronic in service, as service treatment records show that the Veteran denied swollen or painful joints, arthritis, and bone, joint or other deformity during subsequent examinations and clinical evaluation of the spine and upper extremities was normal. See October 1982, August 1983, January 1988, November 1992 service treatment records. The service treatment records also show abnormal near and distant visual acuity during service diagnosed as refractive errors of myopia and astigmatism during service, which are not disabilities. See August 1983, March 1989, November 1992 service treatment records. Refractive error is not a disease or injury in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. The Veteran even denied vision problems during the November 1992 service separation examination. As for the claimed left and right shoulder disorders, service treatment records are absent any complaints, symptoms, diagnosis, or treatment for a left shoulder disorder during service. The service treatment records reflect a single report of hurting the right shoulder while playing basketball in August 1978 (See August 1978 service treatment record); however, subsequent service treatment records show no complaints, symptoms, diagnosis, or treatment for a right shoulder disorder. During subsequent examinations, the Veteran denied problems with a painful or trick shoulder and clinical evaluation of the upper extremities was normal. See October 1982, January 1988, November 1992 service treatment records. Post-service treatment records are silent as to complaints, symptoms, diagnosis, or treatment of a neck disorder, vision disorder, or bilateral shoulder disorder. Private treatment records received in January 2016 only reflect that the Veteran has received treatment for bilateral sensorineural hearing loss (SNHL), tinnitus, benign paroxysmal positional vertigo (BPPV), urticaria, and lumbar spondylosis. See October 2013, November 2014, and November 2015 private treatment record. Moreover, VA treatment records do not reflect symptoms, diagnosis, or treatment for a neck disorder, vision disorder, or bilateral shoulder disorder during the pendency of the claim or within one year prior to the August 2015 claim. The Veteran has not submitted competent evidence of a current neck disability, vision disability, or bilateral shoulder disability. The Board has considered the Veteran’s lay statement that service connection is warranted for the aforementioned conditions because they manifested during service; however, such statement has no tendency to establish current disability. In summary, the evidence does not show diagnoses of a neck disorder, vision disorder, right shoulder disorder, or left shoulder disorder at any time during the pendency of this claim or in the time period just prior to the filing of this claim, or evidence of functional impairment related to these claimed disorders. In the absence of proof of a current disability, there can be no valid claim for entitlement to service connection for a neck disorder, vision disorder, right shoulder disorder, or left shoulder disorder on either a direct, secondary, or any other basis. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for service connection for a neck disorder, vision disorder, right shoulder disorder, or left shoulder disorder, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Whether to Reopen Service Connection for Bilateral Hearing Loss. Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. In this case, March 1999 and November 2002 rating decisions denied service connection for bilateral hearing loss, finding the evidence did not show a current hearing loss disability for VA compensation purposes. The Veteran did not file a timely NOD following the March 1999 and November 2002 rating decisions, and no new and material evidence was received during the one-year appeal period following the decision. As such, the March 1999 and November 2002 rating decisions became final as to the evidence then of record, and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Since the November 2002 rating decision denying service connection for a bilateral hearing loss, VA has received additional evidence. An October 2013 and November 2014 private treatment record received January 2016 reflects that the Veteran has been diagnosed and treated for moderate bilateral SNHL. Presuming the credibility of such new evidence for the purposes of reopening the claim, such evidence relates to unestablished fact of a current hearing loss disability for VA compensation purposes, so could reasonably substantiate the issue of service connection for bilateral hearing loss. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Service Connection for a Low Back Disorder is Remanded. 2. Service Connection for Vertigo is Remanded. 3. Service Connection for Bilateral Hearing Loss is Remanded. The Veteran is seeking service connection for a low back disorder, vertigo, and bilateral hearing loss. The service treatment records show symptoms, diagnosis, and treatment for low back strain and eustachian tube dysfunction during service. See August 1978, July 1985, and June 1988 service treatment records. October 2013 and November 2014 private treatment records also reflect that the Veteran has a diagnosis of moderate SNHL and a history of working long hours in engine rooms and turbine generator rooms with loud mechanical sounds and minimal ear protection during service. The DD Form 214 reflects that the military occupational specialty was refrigeration and AC mechanic and machinery mechanic. A review of the record reflects that the RO cancelled the VA examination for the spine, hearing loss, and vertigo in April 2016 because the Veteran failed to report. See April 2016 CAPRI record. However, a January 2016 lay statement reflects that the Veteran informed that he would be out of town from March 2016 to mid-July 2016, and requested that any VA examination be scheduled after July 2016. As such, good caused is established for the Veteran’s failure to report to the VA examination, and a remand is necessary to reschedule the VA examination. Moreover, the October 2013 letter, and November 2014 and November 2015 medical certificates reflect that the Veteran has been treated for lumbar spondylosis, hearing loss, and vertigo. See October 2013, November 2014, and November 2015 private treatment records. It does not appear that the RO has obtained these treatment records; therefore, the RO should attempt to obtain any outstanding private treatment records related to treatment of a low back disorder, vertigo, or hearing loss on remand. Service connection for a low back disorder, vertigo, and bilateral hearing loss are REMANDED for the following action: 1. Contact the Veteran and request information as to any other outstanding private treatment (medical) records concerning treatment of a low back disorder, vertigo, and bilateral hearing loss. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation pertaining to the treatment of a skin disability, not already of record, for incorporation into the record. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) 2. Schedule the requisite VA audiology, low back conditions, and vertigo examinations to address the relationship, if any, between any current bilateral hearing loss disability, low back disability, and vertigo and active service. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or higher degree of probability) that a current bilateral hearing loss disability had its onset during, or was otherwise causally or etiologically related to active service, to include acoustic trauma from working in engine rooms and turbine generator rooms with loud mechanical sounds during service. b) Is it at least as likely as not (50 percent or higher degree of probability) that a current low back disability had its onset during, or was otherwise causally or etiologically related to active service, to include a fall while playing basketball and symptoms, diagnosis, and treatment for low back strain and muscle pull during service. c) Is it at least as likely as not (50 percent or higher degree of probability) that a current vertigo disability had its onset during, or was otherwise causally or etiologically related to active service, to include symptoms, diagnosis, and treatment for eustachian tube dysfunction during service. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel