Citation Nr: 18152129 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-45 831 DATE: November 21, 2018 ORDER New and material evidence has not been received to reopen the claim to service for onychomycosis (claimed as discolored toenails); the appeal is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for residuals of a bilateral foot cold weather injury is denied. FINDINGS OF FACT 1. The July 1994 rating decision denying service connection for discolored toenails is final. 2. Evidence has not been received that, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for discolored toenails. 3. The Veteran’s tinnitus is related to service. 4. A lumbar spine disorder has not been shown at any time during the pendency of this claim. 5. A bilateral foot cold weather injury or residuals therefrom, has not been shown at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the Veteran’s claim for service connection for discolored toenails. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 2. The criteria for an award for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for an award for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for an award for a bilateral foot cold weather injury have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 to May 1994, with subsequent periods of service with the Army National Guard of South Carolina. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefits being sought. New and material evidence has not been received; the claim for discolored toenails is not reopened In July 1994, the RO denied the Veteran’s claim for service connection for the discoloration of toenails, finding no nexus to service as the Veteran failed to report for his scheduled VA examination. The Veteran did not submit a Notice of Disagreement (NOD) or new and material evidence within one year of its promulgation. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the July 1994 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record could not be new and material even if that evidence were not previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). Material evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In December 2013, the Veteran petitioned the RO to reopen his claim for discoloration of toenails. In September 2017, he advanced the theory that the discoloration of his toenails was caused by posttraumatic stress disorder (PTSD) due to military sexual trauma (MST). The Veteran’s psychiatric disorder is not service-connected. Therefore, this theory cannot be new and material evidence in support of his claim. He has not provided any other lay or medical evidence related to his claim for service connection for discoloration of his toenail. Therefore, as the Veteran has not presented both new and material evidence which raises a reasonable possibility of substantiating the claim, the Board herein finds that the case for service connection for toenail discoloration is not reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2017). To establish service connection for the claimed disorder, there must be (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d at 1328, 1331 (Fed. Cir. 1997). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319. 1. Service connection for tinnitus is granted The Veteran contends that he has tinnitus that was incurred in service. In his July 2016 dated Form 9, he reiterated that he has had the condition since service. The Veteran’s DD-214 shows his military specialty was that of a cannon crewmember. The Board finds the Veteran’s military specialty is consistent with hazardous noise exposure. Moreover, the Board finds the Veteran’s statements of the ringing in his ears to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). As such, the first and second elements of a service connection claim are satisfied. Shedden, 381 F.3d at 1166-67. In a January 2015 VA audiological examination report, the Veteran reported experiencing intermittent, high-pitched sound, occurring many times per week, and lasting 3-5 minutes per episode. The examiner provided a negative opinion and explained that “there was no medical evidence in the military records to indicate an onset of tinnitus during or shortly after the period of active duty and delayed onset of noise-induced tinnitus is not supported by medical research or clinical experience.” The Board finds the January 2015 nexus opinion inadequate and affords it no probative weight. The examiner did not acknowledge the Veteran’s assertion that he had experienced tinnitus since service. Tinnitus is considered an “organic disease of the nervous system” under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to state that he experiences tinnitus and that it has persisted since service. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran’s lay statements regarding the onset and continuity of his tinnitus, to be both competent and credible. Thus, a grant based on the continuity of symptomatology is warranted for tinnitus. Accordingly, the Board finds the evidence at minimum gives rise to reasonable doubt. Therefore, service connection for tinnitus is granted. 38 U.S.C. § 5107 (b) (2012). 2. Service connection for a lumbar spine disability and a bilateral foot cold weather injury is denied The Veteran avers that he has residuals of a cold weather injury to both feet and a lumbar spine disability, both sustained in service. In the alternative, he contends that they are a result of PTSD. He is not service-connected for PTSD. Therefore, this theory will not be addressed. In his January 2013 NOD, he argued that his lumbar spine disability is a result of lifting 100 pounds plus of gun shells, and that his cold weather injury is from frostbite sustained while stationed in Germany in 1990. The Veteran’s STRs from his period of active duty service are absent complaint, diagnosis or treatment of either a lumbar spine disability or a bilateral foot cold weather injury, or residuals thereof or treatment therefor. Regarding a foot condition, in October 1991, a periodic examination indicated that the Veteran had athlete’s foot. He was deemed qualified for retention. In a May 1996 report of medical history for a periodic examination, the Veteran reported recurrent back pain. However, the medical examination did not document a back problem. The probative evidence of record is void of any VA or private treatment notes showing symptoms of a back disability or residuals of a bilateral frostbite injury to the feet during the appeal period. The Board has considered the Veteran’s lay statements. He is competent to describe observable symptoms. However, the Veteran has not provided a lay description of his back or foot symptoms. He has only stated that such disabilities are present. The Board must determine on a case by case basis whether a particular condition is the type of condition that is within the competence of a layperson to provide an opinion as to etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not competent to self-diagnose a lumbar spine disability nor is he competent to self-diagnose residuals of a cold injury to his feet. He has not provided a lay description of his symptoms, including pain or any type of functional impairment in his back or feet. See Saunders v. Wilkie, 886 F.3d 1356 (2018). His lay statements are not probative evidence in support of a finding that back or bilateral foot disabilities due to a frostbite injury have been present during the appeal period. Since the record does not show a lumbar spine disability and a bilateral foot cold weather injury, or residuals thereof, during the appeal period, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319. The claims must be denied. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel