Citation Nr: 18157045 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-58 441A DATE: December 11, 2018 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for hypertension and the appeal is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for an innocently acquired neuropsychiatric disability and the appeal is denied. Entitlement to service connection for muscle aches is denied. Entitlement to service connection for sleep problems is denied. Entitlement to a rating higher than 0 percent for hearing loss, left ear is denied. REMANDED Entitlement to service connection for poor blood circulation, left lower extremity is remanded. Entitlement to service connection for poor blood circulation, right lower extremity is remanded. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. Service connection for hypertension was denied in an October 2008 agency of original jurisdiction (AOJ) rating decision and the Veteran did not perfect an appeal. 2. The evidence received since the October 2008 rating decision is either cumulative or redundant, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. Service connection for a psychiatric disability was denied in a September 2014 Board decision and the Veteran did not appeal that decision. 4. Evidence associated with the claims file since the September 2014 Board decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for a psychiatric disability, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disability. 5. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a disability manifested by muscle aches. 6. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a disability manifested by sleep problems. 7. The Veteran’s hearing loss in his right ear is not service-connected, and audiometric testing has revealed no worse than Level I hearing in the left ear. CONCLUSIONS OF LAW 1. As new and material evidence has not been received, the claim for service connection for hypertension is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has not been received, the claim for service connection for a neuropsychiatric disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for muscle aches have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303. 4. The criteria for service connection for sleep problems have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303. 5. Throughout the period of appeal, the criteria for a rating higher than 0 percent for left ear hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board recognizes that in certifying the issues on appeal, the AOJ listed separate issues of entitlement to service connection for depression, and whether new and material evidence to reopen a claim for service connection for an innocently acquired neuropsychiatric disability has been submitted. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). A September 2014 Board decision denied service connection for a psychiatric disability. Therefore, the issues of service connection for depression and whether new and material evidence to reopen a claim for service connection for an innocently acquired neuropsychiatric disability has been submitted have been combined as the claim must be considered on a new and material evidence basis as having been previously finally denied. New and Material Evidence Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension Service connection for hypertension was denied in an October 2008 AOJ decision, which the Veteran did not appeal, and which is final. The AOJ concluded that there was no evidence of any in-service treatment for hypertension, and there was no evidence of hypertension during the year following the Veteran’s separation from active duty. The earliest ascertainable diagnosis of hypertension of record dated from March 2000. Additionally, a VA examiner noted that the Veteran’s hypertension diagnosis preceded his diagnosis of service-connected diabetes by 10 to 13 years and opined that the Veteran’s service-connected diabetes had no causal relationship with his hypertension. Evidence associated with the claims file since the October 2008 AOJ decision includes additional lay statements, a September 2009 letter from a private doctor, and VA treatment records. In the September 2009 letter, N.A.O., M.D., states that the Veteran should be evaluated to rule out the possibility that his high blood pressure was related to his diabetes mellitus. Notably, in the letter Dr. O. did not actually relate the Veteran’s hypertension to his diabetes. Although the September 2009 letter from a private doctor is new, it is not material, as the letter merely establishes that the Veteran has high blood pressure—an element which was not in dispute in the October 2008 AOJ decision. Furthermore, that letter recommends and evaluation to determine any relationship. However, such an evaluation was already conducted in the VA examination. All of the statements from the Veteran reiterate the previously considered assertion that he has hypertension related to his diabetes mellitus. Therefore, those statements merely reiterate contentions that were previously considered by the AOJ in the October 2008 decision. Thus, those statements are cumulative and are not material evidence. The Board finds the evidence added to the claims file since the October 2008 RO decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which suggests that the Veteran has a current diagnosis of hypertension that occurred in or was caused by service or his service-connected diabetes mellitus, which was the basis for the prior determination. The Veteran’s lay statements are redundant of the evidence previously considered, and the medical reports do not show a connection between the currently diagnosed hypertension and either his service or service-connected diabetes mellitus. As the information provided in support of the application to reopen the claim for service connection for hypertension does not include new and material evidence, the appeal as to that issue remains denied and the claim is not reopened. 2. Whether new and material evidence to reopen a claim for service connection for an innocently acquired neuropsychiatric disability has been submitted Service connection for a psychiatric disability was denied in a September 2014 Board decision which the Veteran did not appeal. The Board concluded that a psychiatric disability was not manifested in service; a psychosis was not manifested within one year after the Veteran’s separation from service; and the only identifiable diagnosis shown by VA hospital records was primary alcohol abuse which was not subject to service connection. Evidence associated with the claims file since the September 2014 Board decision includes additional lay statements and VA treatment records. The VA treatment records added to the claims file are new, but they are not material, as they do not contain a diagnosis of a psychiatric disability. All of the statements from the Veteran reiterate the previously considered assertion that he has a psychiatric disability related to his service. Therefore, those statements merely reiterate contentions that were previously considered by the Board in the September 2014 decision. Thus, those statements are cumulative and are not material evidence. The Board finds the evidence added to the claims file since the September 2014 Board decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which suggests that the Veteran has a current diagnosis of a psychiatric disability that occurred in or was caused by service, which was the basis for the prior determination. The Veteran’s lay statements are redundant of the evidence previously considered, and the medical reports do not show a diagnosis of a psychiatric disability. As the information provided in support of the application to reopen the claim for service connection for a psychiatric disability does not include new and material evidence, the appeal as to that issue remains denied and the claim is not reopened. Service Connection Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical 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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 3. Entitlement to service connection for depression 4. Entitlement to service connection for muscle aches 5. Entitlement to service connection for sleep problems The service medical records are silent for any signs, symptoms, or diagnoses of depression, a muscle ache disability, or a sleep disability. The Board is unclear whether the claim for service connection for depression was reopened by the RO, and will address that. The post-service medical records are also silent for any signs, symptoms, or diagnoses of depression, a muscle ache disability, or a sleep disability. The Board finds that the evidence of record does not provide any medical basis for finding that the Veteran is currently diagnosed with depression, a muscle ache disability, or a sleep disability. The Veteran states that he experiences depression, muscle aches, and sleep problems. However, the evidence does not show any diagnosed disability or medical findings of disability that would constitute a disability for which service connection could be established. Under applicable regulations, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Notably, none of the competent evidence of record demonstrates that the Veteran is currently diagnosed with depression, a muscle ache disability, or a sleep disability. Service connection may not be granted for symptoms unaccompanied by a diagnosed disability. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In the absence of a clear diagnosis of a current disability, or any abnormality which is attributable to some identifiable disease or injury during service, an award of service connection is not warranted. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because there was no actual disability diagnosed at any time since the claim was filed or contemporary to the filing of the claim, and there remains no current evidence of the claimed disability, no valid claim for service connection for depression, a muscle ache disability, or a sleep disability exists. As the preponderance of the evidence is against the claims for service connection for depression, a muscle ache disability, or a sleep disability, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Ratings of hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. The results are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a rating using Table VII. 38 C.F.R. § 4.86. 6. Entitlement to a rating higher than 0 percent for hearing loss, left ear On VA examination in September 2014, the Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG LEFT 45 50 65 65 56 Maryland CNC word recognition was 100 percent in the right ear and 96 percent in the left ear. The Veteran reported having some difficulties understanding speech with the left ear. On VA examination in April 2017, the Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG LEFT 45 50 60 60 54 Maryland CNC word recognition was 100 percent in the right ear and 96 percent in the left ear. The Veteran reported having some difficulties understanding speech with the left ear. As a preliminary matter, the Board observes that the pure tone thresholds recorded on all of the audiological evaluations do not reflect exceptional hearing impairment as defined by regulation, as the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Thus, Table VIa is not for application. 38 C.F.R. § 4.86. Consequently, the Board will evaluate the Veteran’s hearing using Table VI. Applying the method for evaluating hearing loss to the results of the Veteran’s September 2014 audiological evaluation reveals Level I hearing in the left ear, based on application of the reported findings to Table VI. The nonservice-connected right ear is assigned Level I for rating purposes. 38 C.F.R. § 4.85(f). Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Applying the method for evaluating hearing loss to the results of the Veteran’s April 2017 audiological evaluation reveals Level I hearing in the left ear, based on application of the reported findings to Table VI. The nonservice-connected right ear is assigned Level I for rating purposes. 38 C.F.R. § 4.85(f). Application of these findings to Table VII corresponds to a 0 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. To the extent that the Veteran and other lay persons contend that his left ear hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing and having others talk louder, is not competent to report that his hearing acuity is sufficient to warrant a compensable evaluation under VA’s tables for rating hearing loss disabilities. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The evidence is clear that the Veteran presently has left ear hearing loss disability that was incurred while he was on active duty. The current grant of service connection represents an acknowledgement that the Veteran has a left ear hearing loss disability as a result of service. The Board has carefully considered the Veteran’s assertions and in no way discounts the Veteran’s asserted difficulties or his assertions that his left ear hearing loss should be rated higher. However, it must be emphasized that the assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Therefore, a compensable disability rating for left ear hearing loss is not warranted because the preponderance of the evidence is against the assignment of any higher rating. REASONS FOR REMAND 1. Entitlement to service connection for poor blood circulation of the lower extremities The Veteran underwent VA examination in April 2017. The examiner found that the Veteran did not have signs of symptoms suggestive of a peripheral vascular disease on a clinical basis. The examiner stated that the Veteran’s blood circulation problem consisted of impaired venous blood flow due to peripheral venous insufficiency of the lower extremities, and the examiner opined that the Veteran’s condition as less likely than not due to the Veteran’s service-connected diabetes mellitus. For rationale, the examiner stated that the medical literature did not support that an etiologic relationship existed between venous insufficiency and diabetes. Notably, the examiner did not discuss whether the Veteran’s service-connected diabetes mellitus aggravated any peripheral venous insufficiency of the lower extremities. A medical examination or opinion that does not address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Additionally, no opinion was given regarding any possible direct relationship between the peripheral venous insufficiency and the Veteran’s service. Therefore, remand is required for a more complete etiology opinion regarding the Veteran’s peripheral venous insufficiency of the lower extremities. 2. Entitlement to service connection for a skin disability is remanded. Concerning the claim for service connection for a skin disability, the AOJ denied service connection by saying that the medical evidence of record did not show that a skin disability had been diagnosed. However, the Board notes that at an August 2008 VA diabetes mellitus examination, the examiner noted that the Veteran had a diagnosis of fibrosing suppurative dermatitis. A May 2015 VA treatment record documents scoriations, purple lesions, and dryness of the lower extremities. A March 2016 VA treatment record contains a diagnosis of lichen simplex chronicus. Service personnel records show that the Veteran served in Vietnam in 1969, 1970, and 1971. Therefore, he is presumed to have been exposed to herbicide agents. The Board notes that, although fibrosing suppurative dermatitis and lichen simplex chronicus are not among the disorders that are presumed to be associated with exposure to herbicides, the herbicide presumption is not the sole method for showing causation, and the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). None of the Veteran’s treatment providers have provided an etiology opinion regarding his diagnosed skin disabilities. The Board finds that there is insufficient medical evidence of record to make a decision on the claim and remands this issue for a VA examination that addresses the nature and etiology of the diagnosed fibrosing suppurative dermatitis and lichen simplex chronicus. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The matter is REMANDED for the following action: 1. Obtain all VA treatment records not already associated with the claims file 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current lower extremity circulation or cardiovascular disability. The examiner must review the claims file and must note that review in the report. In so doing, the examiner must note the April 2017 VA examination report diagnosing the Veteran as having to peripheral venous insufficiency of the lower extremities. Having examined the Veteran and reviewed the evidence, the examiner should specifically opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s to peripheral venous insufficiency of the lower extremities or any lower extremity cardiovascular disability was caused by service-connected diabetes mellitus or any other service-connected disabilities. The examiner should specifically opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s to peripheral venous insufficiency of the lower extremities has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected diabetes mellitus or any other service-connected disabilities. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any skin disability. The examiner must review the claims file and should note that review in the report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current skin disability. In so doing, the examiner must note the August 2008 VA diabetes mellitus examination in which the examiner noted that the Veteran had a diagnosis of fibrosing suppurative dermatitis, and the March 2016 VA treatment record which contains a diagnosis of lichen simplex chronicus. As to any skin disability identified on examination, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed skin disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service, to include as a result of exposure to an herbicide agent. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed skin disability is caused by any service-connected disabilities. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed skin disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities. If no current skin disability is found, the examiner is asked to consider the VA treatment records, which indicate that the Veteran received a diagnosis of fibrosing suppurative dermatitis in August 2008 and a diagnosis of lichen simplex chronicus in March 2016. The examiner is requested to provide the opinions regarding the diagnoses in the VA outpatient records. The rationale for all opinions should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel