Citation Nr: 18154754 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 14-11 505 DATE: November 30, 2018 ORDER New and material evidence having not been received, the application to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss is denied. New and material evidence having not been received, the application to reopen a previously denied claim for entitlement to service connection for tinnitus is denied. New and material evidence having been presented, the application to reopen a previously denied claim of entitlement to service connection for residuals of a broken nose is granted, and the claim is reopened. Entitlement to service connection for residuals of a broken nose is denied. Entitlement to a total disability rating for unemployability (TDIU) is granted. FINDINGS OF FACT 1. In a May 2005 rating decision, the RO denied service connection for bilateral hearing loss, tinnitus, and residuals of a broken nose. In an August 2012 rating decision, the RO upheld the previous denial of entitlement to service connection for bilateral hearing loss, tinnitus, and residuals of a broken nose. These decisions became final as no notice of disagreement and/or new and material evidence was submitted within one year of those decisions. 2. The evidence added to the record since the last final rating decision denying service connection for bilateral hearing loss and tinnitus does not relate to unestablished facts necessary to substantiate a claim of service connection. 3. Evidence received since the August 2012 rating decision denying service connection for residuals of a broken nose relates to an unestablished fact necessary to substantiate the claim. 4. The Veteran’s claimed residuals of a broken nose are not related to his military service. 5. The Veteran’s service-connected disabilities are as likely as not of such severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. As the evidence received subsequent to the August 2012 rating decision is not new and material, the requirements to reopen the claim for entitlement to service connection for bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 2. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for residuals of a broken nose. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for residuals of a broken nose have not been met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from July 1965 to January 1969. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless “patently incredible” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen claims for bilateral hearing loss and tinnitus The Veteran is seeking service connection for bilateral hearing loss and tinnitus, which he asserts began while in service. The claim was previously denied by the RO in May 2005 and again in August 2012 on the basis that neither disability occurred in or was caused by service. The Veteran did not appeal those decisions, nor did he submit any new and material evidence within a year of receiving the decisions. As such, both decisions are now final. See Buie v. Shinseki, 24 Vet. App. 242. The Veteran submitted a request to reopen the previous claims for bilateral hearing loss and tinnitus on April 4, 2014. These claims were denied in a July 2014 rating decision due to the finding that no new and material evidence had been submitted. The Veteran submitted a notice of disagreement (NOD) in October 2014 and his appeal was perfected in September 2015. After a careful review of the evidence of record, the Board finds that the claims of service connection for bilateral hearing loss and tinnitus should not be reopened. Since the last final denial in August 2012, the Veteran has been treated for his bilateral hearing loss and tinnitus. During an examination in November 2012, the treating physician noted that there were no interval changes in hearing since his last visit. The Veteran’s treatment records dated January 2015 reveal complaints of tinnitus and audiogram results that were stable compared to his last audiogram in 2012. Additional evidence that merely demonstrates that the Veteran continues to receive treatment for his bilateral hearing loss and tinnitus, but does not provide evidence that the disability is service connected, is not new and material. See Cox v. Brown, 5 Vet. App. At 99. Furthermore, the Board has searched the records and has not found any medical evidence, such as a medical opinion, which supports the Veteran’s contention that his bilateral hearing loss and tinnitus were a result of his service. Accordingly, the Board finds that new and material evidence has not been submitted in connection with the claim of service connection for bilateral hearing loss and tinnitus and the claim is not reopened. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a broken nose The Veteran contends that he suffers from residuals of a broken nose due to a nasal fracture that occurred while in service. The claim was previously denied by the RO in May 2005 and again in August 2012 on the basis that no residuals of this condition was shown within one year of separation from service. The Veteran did not appeal those decisions, nor did he submit any new and material evidence within a year of receiving the decisions. As such, both decisions are now final. See Buie v. Shinseki, 24 Vet. App. 242. The Veteran submitted a request to reopen the previous claim for residuals of a broken nose on April 4, 2014. This claim was denied in a July 2014 rating decision due to the finding that no new and material evidence had been submitted. The Veteran submitted a notice of disagreement (NOD) in October 2014 and his appeal was perfected in September 2015. After a careful review of the evidence submitted since the August 2012 rating decision, the Board determines that the Veteran’s claim of service connection for residuals of a broken nose should be reopened. Specifically, new evidence includes a note from the Veteran’s treating otolaryngologist stating that it is a reasonable assumption given his symptom course and diagnosis of right septal deviation, that this is the cause of his nasal septum fracture. He further noted that the Veteran’s nasal septum fracture is now healed, but is causing nasal obstruction. This evidence is new, as it was not before the RO at the time of its August 2012 rating decision. Further, presuming its credibility, it is material, as it relates to an unestablished fact necessary to substantiate the claim, including providing a nexus between the disability and the Veteran’s in-service injury. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the Appellant’s previously denied claim of service connection for residuals of a broken nose is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 3. Entitlement to service connection for residuals of a broken nose The Veteran seeks service connection for residuals of a broken nose. The Board finds that service connection is not warranted based on the evidence of record. The Veteran’s service treatment records reveal that x-rays of his nose were taken in November 1965 after an incident that involved being struck in the nose by another individual. The x-ray results revealed no fracture and no additional treatment was received. Further, his January 1969 separation examination indicated a normal nose. The Veteran’s post treatment records are silent for treatment or complaints of any nose condition. In fact, the first indication of treatment for a nose condition was in August 2014 when he underwent an otolaryngology consult for septal deviation. During his consultation, the Veteran stated that when he was under the employ of the military, he had an injury to his nose when he was struck by an individual. He further stated that since that time he has had difficulty breathing from his right naris. Upon examination, the examiner found a posterior right septal deviation swinging to a left posterior septal deviation. As part of this claim, the Board recognizes the statements from the Veteran regarding his history of a nose condition since service. In this regard, while the Veteran is not competent to make a diagnosis related to this disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the Veteran’s treatment records contradict his assertions that his symptoms have persisted since service. The Veteran did not seek treatment for his nose condition until August 2014, 45 years following his discharge from service. Therefore, continuity of symptoms has not been established. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s residuals of a broken nose to active duty, despite his contentions to the contrary. As discussed above, the Veteran’s sought a consultation for his septal deviation in August 2014. The Veteran’s otolaryngologist opined that the Veteran’s healed septal fracture was the cause of his current nasal obstruction. However, he stated that his opinion was based on a reasonable assumption given the Veteran’s symptoms, but he did not discuss the Veteran’s medical evidence and how it supported his opinion. In adjudicating this claim, the Board has specifically considered the statements made by the Veteran relating his claimed disorder to service. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran’s statements as to the etiology of his nose condition is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4. For the reasons provided above, the preponderance of evidence is against the Veteran’s claim for service connection for residuals of a broken nose. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. 4. Entitlement to a total disability rating for unemployability (TDIU) The Veteran contends that his service connected posttraumatic stress syndrome (PTSD) is the main contributor to his inability to survive in any type of gainful employment. Specifically, because of his service connected disabilities, the Veteran cannot maintain working relationships or tolerate physical activity well enough to maintain more than marginal employment. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow “substantially gainful employment” as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to C&P for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). After a review of the record, the Board determines that TDIU should be granted. In this case, the Veteran meets the schedular criteria for TDIU. Particularly, the Veteran’s service-connected posttraumatic stress syndrome is rated as 70 percent disabling. He is also service connected for degenerative disc disease of the lumbar spine, with a 20 percent disability rating. His combined schedular disability evaluation is currently 80 percent. As such, he meets the schedular criteria for consideration for TDIU. While the minimum rating requirements are met, the Veteran must also be shown to be unable to secure or follow substantial gainful employment in order to establish entitlement to TDIU. The Veteran’s application for TDIU indicates that he owns a tree trimming business and is presently working. The evidence of record documents serious symptoms that would make it difficult or impossible to secure or maintain any type of substantially gainful employment. Indeed, the Veteran’s 70 percent rating for PTSD contemplates serious symptoms that result in occupational impairment. The Veteran’s December 2012 VA examination for PTSD revealed that Veteran had been fired from his last three jobs, the last due to a fight with other co-workers at a restaurant and once due to an altercation with a student as a security guard. The examiner indicated that the Veteran’s long-term work history shows sporadic work, many job changes, multiple firings, and an unstable income. Further the examiner noted that the Veteran has difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a worklike setting. Despite the Veteran’s symptoms, the evidence of record shows that the Veteran currently works at his tree trimming business whenever he can, but reports difficulty working due to getting older and having physical limitations. On his April 2014 Form 9, he indicated that works on a weekly average of 20 hours or less per week, which nets only $4000 to $5000 per year in income. Thus, although the Veteran has shown employment, such employment does not necessarily preclude an award of TDIU unless the employment is not considered substantially gainful employment. There is no regulatory definition of “substantially gainful employment.” However, 38 C.F.R. § 4.16(a) instructs that “[m]arginal employment shall not be considered gainful employment.” “Marginal employment” exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Here, the Veteran states in his Application for Increased Compensation based on Unemployability, that the most he has earned in a year is $16,800. Regardless, even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s part-time work with his tree trimming company constitute no more than marginal employment, and do not preclude an award of a TDIU. Accordingly, given the benefit of the doubt, the Board finds that the Veteran’s service-connected disabilities are at least as likely as not of such severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel