Citation Nr: 18154897 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 14-38 810 DATE: December 3, 2018 ORDER Entitlement to service connection for a low back disorder, to include lumbar degenerative joint disease and low back pain, is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for malaria is denied. The application to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for a skin condition, including dermatitis and psoriasis, is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disability, including alcohol abuse disorder and major depressive disorder induced by alcohol abuse, is remanded. FINDINGS OF FACT 1. The Veteran has not been shown to have a low back disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically relation to his military service. 2. The Veteran has not been shown to have current right ear hearing loss for VA compensation purposes. 3. The Veteran has not been shown to have malaria that manifested in service or within one year thereafter or that is otherwise casually or etiologically related to his military service. 4. In November 1970, the RO denied a claim of service connection for a nervous condition; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance. 5. Evidence received since the November 1970 administrative decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in active service. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. Right ear hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 3. Malaria was not incurred in active service, nor may it be presumed ot have been so incurred. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The November 1970 administrative decision that denied a claim for a nervous condition is final. 38 U.S.C. § 7105 (c) (2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 5. Evidence received since the November 1970 administrative decision denying service connection for a nervous condition is new and material and the claim is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from December 1967 to December 1969, including service to the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The bilateral hearing loss claim has been bifurcated to reflect the medical evidence. The acquired psychiatric disability claim has been recharacterized to reflect the medical evidence and the procedural history. See Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). The Board notes the January 2016 rating decision included a grant of service connection for tinnitus. The Veteran did not appeal that decision. Therefore, it is not currently before the Board. This matter has been advanced on the docket. Law and Analysis Service Connection The Board notes the Veteran has not been afforded a VA examination in connection with his service connection claims for malaria or a lumbar spine disorder. However, the Board finds that examinations are not warranted. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. With regard to the malaria and lumbar spine claims, a VA examination is unnecessary to decide the claims. As discussed below, his service treatment records are negative, and he has not identified any injury, disease, or event in service. Rather, he has simply asserted that the disorders should be service-connected. Therefore, because there is no event, injury, or disease in service to which a current diagnosis of malaria or lumbar spine disorder could be related, the Board finds that a VA examination is unnecessary in this case. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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. 38 C.F.R. § 3.303(b). 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Sensorineural hearing loss is considered to be a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malaria, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§3.307, 3.309 (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for lumbar spine disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a lumbar spine disorder. The Veteran’s service treatment records do not document any complaints, treatment, or diagnosis of a low back disorder. His July 1967 pre-induction examination and his December 1969 separation examination found his spine to be normal. The Veteran also denied having a history of back pain. In addition to the lack of evidence showing a low back disorder manifested in service, the evidence of record does not link any current low back disorder to the Veteran’s military service. As noted above, the records show there were no complaints, treatment, or diagnosis of a low back disorder in service. The Veteran has not identified any disease, injury, illness, or event in service that he believes caused a low back disorder. Rather, he has asserted in general that his claimed low back disorder should be service-connected. As such, there is no injury, disease, or event to which a current disorder could be related. See 38 C.F.R. § 3.159 (c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Therefore, the Board finds that a low back disorder has not been shown to be causally or etiologically to an event, disease, or injury in service. There is also no medical opinion otherwise relating any current low back disorder to the Veteran’s military service. Based on the foregoing the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a low back disorder. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a low back disorder is not warranted. Service Connection for Right Ear Hearing Loss The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose 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, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for right ear hearing loss is not warranted. On the authorized audiological evaluation in January 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 25 30 LEFT 15 20 20 35 40 The Maryland CNC speech recognition score was 100 percent in the right ear. As noted above, the applicable regulation, 38 C.F.R. § 3.385, specifically requires that the auditory threshold be 40 decibels or greater in one of the frequencies between 500 and 4000 Hertz, that the threshold be 26 or more decibels in 3 of those frequencies, or that Maryland CNC speech recognition scores be less than 94 percent. None of these requirements were met during either of the examination, and there are no treatment records showing that the Veteran otherwise met such criteria during the appeal period or within proximity thereto. In summary, the evidence of record does not establish the existence of right ear hearing loss under the clear requirements of 38 C.F.R. § 3.385. In Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. The Board acknowledges the appellant’s reported history of his in-service noise exposure and subsequent hearing difficulties. Nonetheless, while laypersons are sometimes competent to provide opinions regarding etiology and diagnosis, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), in this case, the Board finds that the specific audiological results shown on examination are more probative evidence as to whether the Veteran has current right ear hearing loss for VA purposes than the lay assertions. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the appellant currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran does not have right ear hearing loss during the pendency of the appeal, the Board finds that he is not entitled to service connection. As the weight of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. Service connection for malaria In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for malaria. As a preliminary matter, the Board finds that the record does not show the Veteran has malaria that manifested during the Veteran’s service. The Board notes the Veteran’s service treatment records show he was treated for a sore throat, headaches, and fever in service. However, the Veteran was not diagnosed with malaria in service. The Veteran’s post-service records note malaria in service. See August 2003 treatment record. However, as stated above, the Veteran’s service treatment records do not contain a diagnosis of malaria. A November 1970 treatment record indicates a diagnosis of pneumothorax (collapsed lung), and treatment for symptoms related to that condition. However, there is no diagnosis of malaria. The Board acknowledges the RO has stated that the medical evidence shows the Veteran has malaria that is currently disabling to a compensable degree. See September 2013 Rating Decision. However, the Board finds that the medical evidence of record does not support this statement. There are no other post-service treatment records that denote treatment or a diagnosis of malaria. After a review of all the evidence of record, the Board finds that service connection for malaria is not warranted. In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a disability for which benefits are claimed. In this case, where the evidence shows no current disability upon which to predicate a grant of service connection, at any time during the claim period, there can be no valid claim for that benefit. See Brammer at 225; Rabideau, 2 Vet. App. 141, 143-44 (1992). Based on the foregoing the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for malaria. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for malaria is not warranted. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that 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 means existing 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. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. 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 submitted 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. 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In November 1970, the RO denied a claim of service connection for a nervous condition after the Veteran failed to report for a VA examination. The Veteran did not file a notice of disagreement and no new evidence was submitted within one year of the decision. 38 C.F.R. § 3.156 (b); see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The denial became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. In December 2011, the Veteran filed a claim of service connection for depression and a nervous condition. In September 2013, the RO reviewed the claims file de novo and denied service connection for depression, also claimed as a nervous condition, combat fatigue, and sleep disorder. Irrespective of the RO’s action, however, the Board must decide whether new and material evidence has been received sufficient to reopen the claim for service connection prior to considering the merits of the underlying claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence submitted since the prior final denial includes VA treatment records and a VA examination report, which contain diagnoses of present disabilities. Since the file now reflects present diagnoses, the claim is reopened. See Shade, 24 Vet. App. 110. The evidence relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. The evidence is considered both new and material. REASONS FOR REMAND Service Connection for Skin Condition The Board notes the Veteran’s service connection claim for skin condition was previously considered and denied in November 1970. However, relevant military service treatment records that were in existence at the time have since been associated with the claims file. Therefore, new and material evidence is not needed to reopen the previously denied claim. Rather, the claim must be reviewed on a de novo basis. 38 U.S. C. § 7105; 38 C.F.R. § 3.156(c). The Veteran complained of and was treated for a skin rash in service. Post service records reveal the Veteran was treated for dermatitis, skin lesions, and psoriasis. See June 1991 and February 2006 VA treatment records. However, the Veteran has not been afforded a VA examination. The claim should be remanded for an examination and opinion to determine the nature and etiology of any skin disorder. Service Connection for Left Ear Hearing Loss The Veteran was afforded a VA examination in January 2016 at which time audiological testing did reveal left ear hearing loss. Specifically, the test results show that his peritone threshold was 40 decibels at 4000 Hertz. See 38 C.F.R. § 3.385. The examiner opined that is less likely than not the Veteran’s hearing loss is related to service. In so doing, the examiner acknowledged that long noise level can cause auditory damage resulting in hearing loss but noted the Veteran’s year-long exposure and normal hearing at separation as a rationale for his opinion. However, the examiner did not address whether the hearing loss could have had a delayed onset due to acoustic trauma from in-service noise exposure. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the Board finds that an additional VA medical opinion is needed to determine the nature and etiology of the Veteran’s left ear hearing loss. Service Connection for an Acquired Psychiatric Disability The Veteran was afforded a VA examination in connection with his psychiatric claim in October 2016. At that time, the examiner noted a diagnosis of alcohol abuse disorder and alcohol induced major depressive disorder with symptoms resulting in an occupational and social impairment. The examiner found that the Veteran’s mental deterioration is mostly due to his alcohol abuse as he noted the two disorders are dependent on one another. He further stated that the alcohol abuse was probably masking an underlying mental condition but a determination could not be made until the Veteran is alcohol free. Therefore, the examiner opined that the Veteran’s psychiatric disorder is less likely than incurred in or caused by his service. Further, he stated the psychiatric disorder, namely alcohol abuse disorder, was due to the Veteran’s willful misconduct and choices. While review of the Veteran’s claims file reveals a consistent alcohol related psychiatric disorder, it also reveals he was diagnosed with major depressive disorder with an alcohol use disorder in remission. See August 2016 VA treatment record. Therefore, it appears that at a time when the Veteran’s alcohol use disorder was in remission, he was still identified to have major depressive disorder. This evidence undermines the examiner’s opinion that it is not possible to assess whether the Veteran has an underlying mental condition when his alcohol use is in remission. In addition, the claims file contains a diagnosis of chronic fatigue syndrome (combat) and memory loss. See August 2003 VA Agent Orange Examination. Therefore, the Board finds another VA examination and opinion is necessary. The matter is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any skin condition that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not the Veteran has a skin condition that is related to his military service. The examiner should consider the relevant STRs and post-service VA treatment records. A clear rationale for all opinions is required. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any left ear hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is also advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should provide an opinion as to whether it is at least as likely as not that any current left ear hearing loss manifested in service or within one year thereafter or are otherwise etiologically related to the Veteran’s military service, to include noise exposure therein. A clear rationale for all opinions is required. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder, including any alcohol use disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should also be noted that the requirement of current disability is satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim. The examiner should identify all current psychiatric disorders. The examiner should clarify whether the Veteran’s major depressive disorder is distinguishable from any alcohol use disorder. For each diagnosis, the examiner should state whether it is at least as likely as not that the disorder is related to his military service. The examiner should consider the August 2003 VA Agent Orange Examination. A clear rationale for all opinions is required. (Continued on the next page)   5. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel