Citation Nr: 18154679 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 18-29 312 DATE: December 3, 2018 ORDER The application to reopen the claim for entitlement to service connection for a lumbar spine disability is granted. The application to reopen the claim for entitlement to service connection for a bilateral eye disability is granted. The application to reopen the claim for entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a right hip disability is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral eye disability is remanded. FINDINGS OF FACT 1. In a rating decision dated June 1996, the RO denied claims of service connection for a lumbar spine disability and eye disease; the Veteran did not perfect his appeal. 2. Evidence received since the June 1996 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability, specifically, competent evidence of a relationship between his service and the claimed lumbar spine disability. 3. Evidence received since the June 1996 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral eye disability, specifically, a current eye disability. 4. In a rating decision dated June 2000, the RO denied the Veteran’s claim for service connection for bilateral hearing loss disability; the Veteran did not appeal this decision or submit new evidence within one year of the denial. 5. Evidence received since the June 2000 rating decision does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for a bilateral hearing loss disability. 7. Right hip degenerative joint disease is not due to disease or injury during service and was not manifest within one year of discharge. CONCLUSIONS OF LAW 1. The June 1996 rating decision denying service connection for lumbar spine degenerative disc disease is final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2018). 2. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for a lumbar spine disability has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2018). 3. The June 1996 rating decision denying service connection for eye disease is final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2018). 4. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for bilateral eye disability has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2018). 5. The June 2000 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2018). 6. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for bilateral hearing loss has not been submitted; the claim is not reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2018). 7. The criteria for service connection for a right hip degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1960 to November 1960, and from May 1961 to April 1964. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to that rule is that if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The language of 38 C.F.R. § 3.156 (a) is a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” is “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); see Meyer v. Brown, 9 Vet. App. 425, 429 (1996); see King v. Brown, 5 Vet. App. 19, 21 (1993). The presentation of new arguments based on old evidence already of record does not constitute the presentation of new evidence. Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006). 1. The application to reopen the claim for entitlement to service connection for a lumbar spine disability is granted. In a rating decision dated June 1996, the RO denied the Veteran’s claim for service connection for lumbar spine disability. At the time of the rating decision, the record consisted of service records showing a complaint of back pain, VA treatment records, and a March 1996 VA examination. The Veteran filed a Notice of Disagreement (NOD), but did not perfect his appeal after the September 1996 Statement of the Case (SOC) was issued. In the October 2016 NOD, the Veteran stated that he has had problems with his back ever since he injured it during service while loading and unloading a truck. The Board finds that such evidence is new because it was not before the RO at the time of the June 1996 rating decision or the September 1996 SOC. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a lumbar spine disability, namely the continuity of back-related symptoms. Thus, the Board finds that the evidence submitted is both new and material, and the claim is reopened. 2. The application to reopen the claim for entitlement to service connection for bilateral eye disability is granted. In a rating decision dated June 1996, the RO denied the Veteran’s claim for service connection for eye disease because of a lack of manifestations of chronic eye disability in service or treatment for eye disease in service. As noted above, the Veteran filed an NOD, but did not perfect his appeal. At the time of the rating decision, the record consisted of STRs, which reflect treatment for eye irritation after having deodorant sprayed in his eyes, and 20/20 vision bilaterally on entrance and separation; a July 1995 VA record indicating the presence of myopia; and a February 1996 VA record showing the Veteran complained of deodorant being sprayed in his eyes during service. Evidence received since the June 1996 decision includes a March 2018 VA examination, which contains several eye-related diagnoses. The Board finds that such evidence is new because it was not before the RO at the time of the June 1996 rating decision or the September 1996 SOC. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a lumbar spine disability, namely the presence of a current disability. Thus, the Board finds that the evidence submitted is both new and material, and the claim is reopened. 3. The application to reopen the claim for entitlement to service connection for bilateral hearing loss is denied. In a rating decision dated June 2000, the RO denied the Veteran’s application to reopen his claim for service connection for a hearing loss because the evidence weighed against a finding that his hearing loss was related to his service. At the time of the rating decision, the record consisted of service treatment records, VA treatment records, and a March 1996 VA examination, which shows the presence of hearing loss under 38 C.F.R. § 3.385. The Veteran did not appeal this decision or submit new and relevant evidence within one year of the denial. Since the June 2000 decision, VA has received VA medical records and an August 2016 VA examination, which show the presence of hearing loss under 38 C.F.R. § 3.385. Accordingly, there has not been evidence presented that addresses a previously unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. Under these circumstances, the Board must conclude that new and material evidence to reopen the service-connection claim for hearing loss disability has not been received, and the claim is not reopened. See 38 U.S.C. §§ 5108, 7103, 7104; 38 C.F.R. §§ 3.156, 20.1100. Service Connection Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303 (a). Direct service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Consistent with this framework, direct service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 4. Entitlement to service connection for a right hip degenerative joint disease. The Veteran asserts service connection for a right hip disability. See May 2016 Claim. As to current disability during the appellate period, the Veteran has degenerative joint disease of the right hip See August 2016 VA Examination. As to in-service injury, service records show the Veteran reported he twisted his right hip in August 1960; the assessment was full range of motion, negative straight leg test, and hip strain. See February 1996 Service Record. As to nexus, the August 2016 VA examiner found it is less likely than not the Veteran right hip degenerative joint disease is due to his in-service right hip strain. The Board notes the August 2016 VA clinician examined the Veteran and provided a rationale in noting the Veteran manifests symmetrical, bilateral degenerative joint disease, which indicates that this disease is age-related. The examiner performed a clinical interview of the Veteran and provided rationale for the conclusion reached. Thus, this opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). The Veteran is competent to relate what he experiences through the senses, such as trouble hearing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology. The Board finds that the Veteran’s statements regarding the etiology of his hearing loss cannot be accepted as competent medical evidence. His lay assertions are therefore afforded less probative weight than the August 2016 VA opinion. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, as the evidence in this case does not reach the level of equipoise, the Board concludes the claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that his currently diagnosed lumbar spine disability is related to a lifting injury that occurred during service. Unfortunately, the VA examinations of record are inadequate. The March 1996 VA examiner did not review the claims file, which shows that the Veteran injured his back during service, and the August 2016 VA examiner did not consider the Veteran’s statement with respect to continuity of symptoms since discharge. Thus, another examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 2. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran contends that he has a currently diagnosed bilateral eye disability related to service. Specifically, he maintains that he had cologne or shaving cream sprayed in both eyes by another soldier. Unfortunately, the VA examination of record is inadequate. The March 2018 VA examiner reviewed the claims file, which shows that the Veteran had deodorant sprayed in his eyes in February 1962. Superficial irritation was noted in the right eye. Both eyes were flushed out. The VA examiner diagnosed several eye-related disabilities, to include bilateral ocular allergies. She noted that this condition is the result of the Veteran “being sensitive to some irritant in his environment.” She noted that “both occurrences healed without incident” and opined that “[n]o relationship to service can be made.” It is not clear to the Board which “occurrences” the examiner is referring to. Further, she does not provide a rationale for this opinion. Thus, another examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of any currently diagnosed lumbar spine disability. The claims folder must be sent to the examiner for review in conjunction with the examination. The examiner should provide the following opinion: Is it at least likely as not (50 percent or greater probability) that any currently diagnosed lumbar spine disability is related to the Veteran’s period of active military service? The examiner should address the October 1962 STR, the separation examination, any medical records and lay statements concerning post-service back injuries, and lay statements from the Veteran regarding continuity of symptomatology since service. The reviewer should set forth the medical reasons for accepting or rejecting the statements of continuity of symptoms since service. A complete rationale for any opinion offered should be provided. 2. Schedule a VA examination to determine the nature and etiology of any currently diagnosed eye disability. The claims folder must be sent to the examiner for review in conjunction with the examination. The examiner should provide the following opinion: Is it at least likely as not (50 percent or greater probability) that any currently diagnosed eye disability is related to the Veteran’s period of active military service? The examiner should address the February 1962 STR, the separation examination, any relevant VA treatment records, the March 2018 VA examination, and lay statements from the Veteran regarding continuity of symptomatology since service. The reviewer should set forth the medical reasons for accepting or rejecting the statements of continuity of symptoms since service. A complete rationale for any opinion offered should be provided. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Trickey