Citation Nr: 18152474 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 10-27 628A DATE: November 27, 2018 ORDER The previously denied claim of service connection for right ear hearing loss is not reopened. The previously denied claims of service connection for left ear hearing loss and tinnitus are reopened. Service connection for tinnitus is granted. Service connection for left ear hearing loss is granted. Service connection for psoriasis is granted. Service connection for benign prostate hypertrophy (BPH) is denied. A disability rating greater than 10 percent for diabetes mellitus is denied. FINDINGS OF FACT 1. Claims of service connection for bilateral hearing loss and tinnitus were previously denied in an April 2013 Board decision on the basis that the Veteran’s right ear hearing loss was not disabling for VA purposes, and his left ear hearing loss and tinnitus were not incurred during the Veteran’s active service, or manifested within the allowed presumptive period thereafter. 2. For the claimed right ear hearing loss, evidence submitted since the April 2013 Board decision is not new and material as it fails to show hearing loss that is considered disabling for the purposes of VA compensation. 3. For the claimed left ear hearing loss and tinnitus, evidence submitted since the April 2013 denial is new and material, and is a sufficient basis to reopen the claims. 4. Resolving reasonable doubt in the Veteran’s favor, he experienced observable symptoms of left ear hearing loss and tinnitus during active service, and has continued to experience those symptoms since service. 5. The Veteran’s psoriasis is as likely as not to have begun during active service. 6. The evidence does not show an in-service event, injury, or disease related to the prostate, nor a relationship between the Veteran’s current benign prostate hypertrophy and his military service. 7. The Veteran’s diabetes mellitus is managed by restricted diet only, and does not require insulin or oral hypoglycemic medications. CONCLUSIONS OF LAW 1. The April 2013 Board decision that denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. §§ 5108, 7104(b) (2006); 38 C.F.R. § 3.156(b) (2012). 2. The criteria for reopening the claim of entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for reopening the claims of entitlement to service connection for left ear hearing loss and tinnitus have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria to establish service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 6. The criteria to establish service connection for psoriasis are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. The criteria to establish service connection for benign prostate hypertrophy are not met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 8. The criteria for a rating greater than 10 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.119 Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to March 1970, with verified combat service in the Republic of Vietnam. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in October 2012 to present testimony on the issues of service connection for hearing loss, tinnitus, and a skin disorder. New and Material Evidence As here, where the claim of service connection for bilateral hearing loss and tinnitus has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claims. 38 U.S.C. § 7105; 38 C.F.R. § 3.156 (a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus were last finally denied in an April 2013 Board decision. This determination was based upon a lack of evidence that his right ear hearing impairment constituted a disability for VA purposes, and that his currently diagnosed left ear hearing loss and tinnitus were attributable to his active military service. The Board’s decision became final when it was issued. 38 U.S.C. § 5108. Thus, new and material evidence is now required to reopen those claims.   1. The petition to reopen a finally denied claim of service connection for right ear hearing loss is denied. To reopen this claim, the Veteran must show that his right ear hearing loss is now a disability within the definition provided by VA regulations, as this is the reason his claim was previously denied. The determination of whether a Veteran has a disability due to impaired hearing is governed by 38 C.F.R. § 3.385 which states that for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2009). After the previous denial of his claim, the Veteran submitted a November 2013 private treatment record from an ear, nose and throat (ENT) specialist that included audiological test results. Speech recognition scores using the Maryland CNC Test were not provided. However, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 35 None of these frequencies reflect an auditory threshold greater than 40 decibels, nor at least 26 decibels in three of these frequencies, either at the time of this ENT visit or at any other point during the present appeals period. Thus, the Veteran is not shown to have a current right ear hearing loss disability, as defined by VA regulations. 38 C.F.R. § 3.385. In the absence of new and material evidence of right ear hearing impairment that is disabling, as defined by VA, the claim of service connection for right ear hearing loss is not reopened. 38 C.F.R. § 3.156. 2. The petition to reopen a finally denied claim of service connection for left ear hearing loss and tinnitus is granted. The last final denial of the Veteran’s claims of service connection for left ear hearing loss and tinnitus was based on the balance of evidence showing a nexus, relationship, or link between the Veteran’s current disability and his noise exposure during service being against the Veteran’s claims. Notably, the Board’s April 2013 denial explicitly discussed that tinnitus was not considered a chronic disease, such that any discussion of continuity of symptomatology was not applicable for tinnitus. However, due to a subsequent change in the interpretation of the law, tinnitus is now considered to be an organic disease of the nervous system, and thus a chronic disease, such that other regulations regarding presumptive service connection and continuity of symptomatology are now applicable to tinnitus. 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran has also since clarified that he experienced ringing in the left ear since 1969. Statement from Veteran, July 2014. The Veteran has also submitted photographs from his Vietnam service of himself with tanks, armored personnel carriers, and helicopters around which he served. Collectively, this evidence is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claims of service connection. As new and material evidence has been received, the claims of entitlement to service connection for left ear hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection 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) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for left ear hearing loss and tinnitus is granted. The prior Board decision did not contest that the Veteran had current disabilities of left ear hearing loss and tinnitus, and conceded that the Veteran experienced combat noise exposure in Vietnam. Thus, the first two elements necessary to establish service connection have been met. The remaining element at issue is whether the Veteran’s current left ear hearing loss and tinnitus began during service or the one-year presumptive period thereafter, or are otherwise related to his active service. One method of establishing such a nexus or link to service is through continuity of symptomatology. 38 C.F.R. § 3.303(b). 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. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic diseases, which now includes both sensorineural hearing loss and tinnitus. See Fountain v. McDonald. The Veteran has variously described the onset of symptoms of left ear hearing loss and tinnitus as beginning during service and onset several years later. The Veteran also has a known history of exposure to loud noises during service, as well as a significant post-service noise exposure history. See VA examination, November 2007. However, in the matter of a relationship between active service and the Veteran’s current left ear hearing loss and tinnitus, the Board finds the evidence to ultimately be in an approximate balance of positive evidence in support of the claim and negative evidence against the claim, a legal condition called equipoise. When this occurs, VA must resolve any reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board does so here, and the claims of service connection for left ear hearing loss and tinnitus are granted. 2. Service connection for psoriasis is granted. In August 2018, the Board requested a medical specialty opinion on the Veteran’s claim of service connection for a skin disorder, including skin irritation on both feet that the Veteran attributed to herbicide agent exposure. The reviewing specialist reiterated the Veteran’s statements that his skin problems began during service in Vietnam as his feet remained moist, warm and confined in boots, sometimes for weeks at a time. Although the specialist could not determine whether psoriasis or a fungus was the primary skin condition present during service without examining the skin at the time, he found it at least as likely as not that the Veteran’s currently diagnosed psoriasis started during his military service. Medical opinion, September 2018. On this basis, service connection for psoriasis is warranted. 38 C.F.R. § 3.303. 3. Service connection for benign prostate hypertrophy is denied. VA treatment records and a June 2017 VA examination reflect that the Veteran is currently diagnosed with mild benign prostate hypertrophy, also known as BPH or an enlarged prostate. The Veteran attributes the condition to herbicide agent exposure, which he refers to as Agent Orange. Report of General Information, January 2014. In this instance, the Veteran is entitled to the presumption of herbicide agent exposure while serving in Vietnam. However, benign prostate hypertrophy is not among the exclusive list of diseases associated with exposure to herbicide agents that are covered by the presumption of service connection. 38 C.F.R. § 3.309(e). That is, sufficient epidemiological evidence has not been shown to establish a medical link between herbicide agent exposure and the development of this disorder. Although prostate cancer is included on this list of diseases subject to presumptive service connection based on herbicide agent exposure, benign prostate hypertrophy is not prostate cancer. The Veteran was explicitly found not to have any evidence of tumor or neoplasm of the male reproductive system, including the prostate, on examination in June 2017. As such, service connection for BPH is not warranted on a presumptive basis due to herbicide agent exposure. 38 C.F.R. § 3.309. Also, the Veteran’s service treatment records do not show any symptoms, treatment, or complaint of benign prostate hypertrophy or other prostate condition during the Veteran’s active service, nor does the Veteran assert such occurred. Upon separation examination in March 1970, the Veteran’s anus and rectum, including the prostate, were evaluated as clinically normal. In all, there is no competent or probative evidence establishing that an event, injury or disease related to the prostate occurred during active service. 38 C.F.R. § 3.303. The Veteran as a lay person is not competent to provide an opinion linking the claimed disability to service. Service connection for benign prostate hypertrophy is not warranted on any basis. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal.   1. A disability rating greater than 10 percent for diabetes mellitus is denied. The Veteran seeks a higher rating for his service-connected diabetes, currently rated as 10 percent disabling under Diagnostic Code 7913. Under this code, a 10 percent rating is warranted for diabetes that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes that requires insulin and restricted diet, or oral hypoglycemic agent and restricted diet. Higher ratings are allowed for diabetes that requires insulin, restricted diet, regulation of activities, and episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization or regular visits to a diabetic care provider. In this case, the Veteran’s diabetes is shown to be well controlled on restricted diet alone, and is not shown to have required insulin or oral hypoglycemic medication at any point during the present appeal. See, e.g., VA examination, August 2017. In fact, at the time the Veteran filed this claim seeking an increased rating for diabetes in January 2014, the Veteran only had pre-diabetes as he did not yet meet the criteria for a diagnosis of diabetes. VA examination, August 2014. Nonetheless, service connection is in effect for diabetes throughout the present appeal as well as multiple other disabilities granted service connection during this appeals period including renal insufficiency with hypertension, incontinence, peripheral neuropathy of the bilateral upper and lower extremities, diabetic nephropathy, bilateral cataracts, and erectile dysfunction, all as secondary to the Veteran’s diabetic condition. Compensable complications of diabetes are to be evaluated separately, while noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. The Board does not find evidence of compensable complications of diabetes that are not already awarded separate compensation, nor does the Veteran so contend. (Continued on the next page)   The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. The preponderance of the evidence is against a disability rating greater than 10 percent for his diabetes mellitus. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald