Citation Nr: 18156215 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 18-32 281 DATE: December 7, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the left foot is granted. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the right foot is granted. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the left hand is granted. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the right hand is granted. Entitlement to service connection for residuals of frostbite of the left foot is denied. Entitlement to service connection for residuals of frostbite of the right foot is denied. Entitlement to service connection for residuals of frostbite of the left hand is denied. Entitlement to service connection for residuals of frostbite of the right hand is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. REMANDED Entitlement to service connection for major depressive disorder and anxiety disorder (MDD) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. An August 2007 rating decision denied service connection for residuals of frostbite of the left foot, residuals of frostbite of the right foot, residuals of frostbite of the left hand, and residuals of frostbite of the right hand. The Veteran did not appeal the decision and new and material evidence was not received within a year of the decision. Therefore, the decision is final. 2. Additional evidence received since the August 2007 rating decision is new and material. 3. The weight of the evidence is against finding that bilateral hearing loss began during active service or the first post-service year, or that it is otherwise related to an in-service injury, event, or disease. 4. The weight of the evidence is against finding that bilateral tinnitus began during active service or the first post-service year, or that it is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The August 2007 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the August 2007 rating decision, which denied service connection for residuals of frostbite of the left foot, residuals of frostbite of the right foot, residuals of frostbite of the left hand, and residuals of frostbite of the right hand, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to January 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an July 2015 rating decision by the Decatur Regional Office (RO) of the Department of Veterans Affairs (VA). New and Material Evidence Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the left foot. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the right foot. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the left hand. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frostbite of the right hand. The issues of entitlement to service connection for residuals of frostbite of the left foot, residuals of frostbite of the right foot, residuals of frostbite of the left hand, and residuals of frostbite of the right hand (residuals of frostbite), were denied in an August 2007 rating decision on the basis that there was no evidence of current frostbite residuals. The Veteran did not submit a notice of disagreement or new evidence within one year of the decision. Therefore, the August 2007 rating decision is final. Since that time, the Veteran has submitted a private medical examination wherein the examiner diagnosed him with residuals of frostbite. (8/14/2014, Medical Treatment Record – Non-Government Facility, p. 9). This evidence is “new,” because it was not submitted to the AOJ prior to the August 2007 rating decision, and the evidence is “material,” because it relates to the unestablished facts of whether the Veteran has current diagnoses of residuals of frostbite. As a result, the Board concludes that the issues of entitlement to service connection for residuals of frostbite are reopened. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) the existence of a present disability, (2) an 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. See 38 U.S.C. § 1110 (2012); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; or the threshold 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 (2017). Certain chronic diseases, to include tinnitus, 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. The VA is required to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). When evaluating lay evidence, the Board must consider if the witness is competent to report the evidence. A lay person is competent to report information when they have knowledge of the facts or circumstances they are reporting; conversely, a lay person is not competent to report information that requires specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). However, a lay person is competent to report a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Should the Board determine that the lay evidence is competent, the Board must determine whether it is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). After the Board has made competence and credibility determinations, it must evaluate the evidence. See 38 U.S.C. § 7104(a). In doing so, the Board may favor one medical opinion over another. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 5. Entitlement to service connection for residuals of frostbite of the left foot 6. Entitlement to service connection for residuals of frostbite of the right foot 7. Entitlement to service connection for residuals of frostbite of the left hand 8. Entitlement to service connection for residuals of frostbite of the right hand The Veteran contends that that he suffers from current residuals of frostbite. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. At the outset, the Board acknowledges lay evidence submitted by the Veteran regarding his experience with frostbite in-service and his in-service diagnosis of frostbite. The Board does not dispute that the Veteran was diagnosed with frostbite during his active service; therefore, in-service incurrence is not in dispute. The Board concludes that the Veteran does not have a current diagnosis of frostbite residuals and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In support of his assertions, the Veteran provided an August 2014 private medical opinion, from Dr. PY, who diagnosed the Veteran with residuals of frostbite and opined that the disabilities “should qualify... for service connection.” (8/14/2014, Medical Treatment Record – Non-Government Facility, p. 9). It is not clear on what basis Dr. PY rendered his diagnosis, see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”), or if Dr. PY reviewed the Veteran’s VA medical or service treatment records. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Moreover, Dr. PY does not acknowledge the Veteran’s current diagnosis of diabetic peripheral neuropathy or his previous surgeries for carpal tunnel syndrome. Dr. PY’s failure to address the Veteran’s medical history, indicates that his diagnosis is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). As a result, the Board finds that Dr. PY’s opinion is not adequate for evaluation purposes. In April 2015 the Veteran underwent a VA medical examination. The examiner noted the current diagnoses of upper and lower extremity diabetic peripheral neuropathy and prior bilateral carpal tunnel surgeries. (7/22/2015, C&P Exam, p.1). The examiner concluded that the Veteran was diagnosed with cold injuries of the extremities during service, but opined that the conditions had resolved without residuals. (7/22/2015, C&P Exam, p.17). In rendering her opinion, the examiner noted that the Veteran’s cold injuries did not “surface at his exit physical examination... nor at his podiatry examination... nor at his [Physician Disability Examination Services] evaluation.” (7/22/2015, C&P Exam, p. 67). The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the April 2015 VA examiner’s findings. As the competent and probative evidence of record does not demonstrate that the Veteran’s has a current diagnosis of residuals of frostbite, service connection is not warranted. 9. Entitlement to service connection for bilateral hearing loss The Veteran contends that bilateral hearing loss is related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of bilateral hearing loss, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The record contains conflicting medical opinions regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to an in-service injury, event, or disease. At the outset, the Board notes that in-service acoustic trauma is conceded as consistent with the types and circumstances of service, as the Veteran worked as a switchboard operator and trained as a sharpshooter. Current disability has also been shown. Despite in-service noise exposure, the July 2015 VA examiner opined that the current hearing loss was not related to active service. The rationale was that the Veteran’s separation examination showed normal hearing with no significant threshold shifts from his enlistment examination. (7/22/2015, C&P Exam, p. 95). The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In an August 2014 private medical opinion, Dr. PY opined that the Veteran’s hearing loss was related to service, reasoning that the Veteran was exposed to acoustic trauma during service, including artillery fire. (8/14/2014, Medical Treatment Record – Non-Government Facility, p. 10). This opinion is, however, less probative than the VA examiner’s opinion, as there is no indication that Dr. PY reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran’s self-reported medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, as a doctor of chiropractic care, Dr. PY lacks training, education, and experience in audiology, whereas the VA examiner was an audiologist. See Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007); 38 C.F.R. § 3.159(a)(1). Consequently, the Board gives more probative weight to the July 2015 VA examiner’s opinion. Additionally, the Veteran’s VA medical records reveal that, as of 2015, he believed that the onset of his bilateral hearing loss occurred in the last 10 to 15 years, approximately 23 years after his discharge from active service. (02/13/2018, CAPRI, p. 77). Thus, there is no evidence of continuity of symptomatology in the present case. The Veteran believes his current hearing loss is attributable to in-service noise exposure, but as a lay person he lacks the requisite knowledge to opine on this question in this case, complicated by the passage of time and exposure to the normal noises encountered in day to day life. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) As the competent and probative evidence of record does not demonstrate that the Veteran’s bilateral hearing loss is related to his active service, service connection is not warranted. 10. Entitlement to service connection for bilateral tinnitus The Veteran contends that his bilateral tinnitus is related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of bilateral tinnitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The record contains conflicting medical opinions regarding whether the Veteran’s bilateral tinnitus is at least as likely as not related to an in-service injury, event, or disease. The July 2015 VA examiner found against a nexus to service, reasoning that the Veteran initially noticed the onset of tinnitus approximately 8-10 years prior to the 2015 examination. (7/22/2015, C&P Exam, p.98). The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The August 2014 Private practitioner, Dr. PY, opined that the Veteran’s bilateral tinnitus is at least as likely as not related to his military service. (8/14/2014, Medical Treatment Record – Non-Government Facility, p. 10). However, the opinion is not probative, because the preponderance of the evidence weighs against finding that symptoms of bilateral tinnitus manifested during, or within a year, of the Veteran’s active service. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). By the Veteran’s own admission, symptoms of tinnitus first manifested around 2005. Consequently, the Board gives more probative weight to the July 2015 VA examiner’s opinion. As the competent and probative evidence of record does not demonstrate that the Veteran’s bilateral tinnitus is related to his active service, service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for major depressive disorder (MDD) is remanded. The Board concludes that a remand is necessary to ensure that the Veteran’s complete service personnel records are associated with the claims file. In an August 2014 private medical opinion, the Veteran asserted that he first became depressed during his active military service. He indicated that following the death of his child, he was granted emergency leave to return home. (8/14/2014, Medical Treatment Record – Non-Government Facility, p. 3, 4). It was during this time that, the Veteran asserts, symptoms of MDD first manifested. Despite the Veteran’s claim, there is no medical evidence indicating that he complained of or sought treatment for any mental health condition during service. Further, his military personal records to not indicate that he requested or was granted emergency leave, as he contends. However, it is not clear that the Veteran’s complete military personal records have been associated with his claim record. As a result, the Board finds that a remand is necessary to ensure that the complete service personnel records are associated with the claim file, as these records may substantiate his assertion that he was granted emergency leave and subsequently developed MDD. 2. Entitlement to a TDIU as a result of service-connected disabilities is remanded. Finally, because a decision on the remanded issue of MDD could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim of a TDIU is required. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from February 2018 to the present. 2. Obtain the Veteran's complete service personnel records. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Glenn, Law Clerk