Citation Nr: 18158730 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-18 950A DATE: December 17, 2018 ORDER New and material evidence has not been presented, and the claim to reopen entitlement to service connection for a skin condition is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACTS 1. In a March 2011 rating decision, the Veteran’s claim for service connection for a skin condition is denied and the Veteran neither filed a timely Notice of Disagreement, nor submitted new and material evidence within a year of the rating decision. 2. The evidence received since the March 2011 rating decision includes evidence that is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for a skin condition. 3. The Veteran’s bilateral hearing loss was not shown to have occurred in service, did not manifest for several years thereafter, and has not been related to service by competent evidence. CONCLUSIONS OF LAW 1. The March 2011 rating decision denying service connection for a skin condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen a previously denied claim for service connection for a skin condition have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969. This matter is on appeal from a March 2011 rating decision. Reopening Claims Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is 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. 38 U.S.C.§ 5108. New evidence means 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 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran’s claim for entitlement to service connection for a skin condition was denied in a March 2011 rating decision. That decision became final since the Veteran neither perfected an appeal nor submitted new and material evidence within a year of the rating decision. Thus, for the matter to be reopened, new and material evidence is required. At the time of the March 2011 rating decision, the record consisted of service treatment records, including a September 1967 report of medical examination noting clinical findings regarding his skin, and a June 1969 report of medical history, in which the Veteran reported having experienced boils for 10 years. Also of record was a statement from the Veteran’s spouse asserting that he had experienced skin rashes throughout their marriage, which began in 1992, several decades after his return from Vietnam. Finally, VA treatment records as of 2011 documented noted the presence of a skin rash but failed to even suggest that the condition was the result of his military service. The Veteran filed to reopen his service connection claim in December 2014. Evidence received since the March 2011 include VA treatment records noting that the Veteran had a history of a skin condition and that he had a fungal type lesion on his face and head. However, there records do not suggest a nexus relationship between the Veteran’s condition and his service. They also would not trigger any duty to assist on VA’s part were the claim to be reopened. The Board finds that the evidence received since the March 2011 rating decision is not new as it is cumulative of the evidence of record. Moreover, it is not material as it does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Even considering the holding in Shade v. Shinseki, 24 Vet. App. 110, to the effect that the VA regulation as to reopening a claim “must be read as creating a low threshold,” there is still a minimum threshold. However, the new evidence does not reach that threshold. As such, the claim is not reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Hearing loss, if sensorineural in nature, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). It is the Veteran’s contention that he sustained hearing loss during service. The Veteran’s DD-214 show that he received recognition as a marksman, and that he served as a cook. Service treatment records are silent for complaints or diagnosis relating to hearing loss. On his medical history survey completed in conjunction with his separation physical the Veteran specifically denied any hearing loss, while reporting a number of other conditions. Additionally, audiometric testing at the Veteran’s separation physical did not show hearing loss, even after being converted from ASA to ANSI-ISO. In support of his claim, the Veteran’s spouse submitted a statement stating that the Veteran suffers from hearing loss. She explained that he often does not hear the phone and has to turn the television volume on high. VA treatment records dating January 2011 show that the Veteran complained of hearing problems and was once told that he needed hearing aids. In a February 2011 VA audiology examination, the Veteran was found to have moderate to severe sensorineural hearing loss beginning at 2000 Hz in the right ear and mild to moderate to severe sensorineural hearing loss beginning at 3000 Hz in the left ear. His speech recognition ability was noted as good. The Veteran was afforded a VA examination in April 2015. His puretone thresholds are as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 70 70 70 LEFT 10 15 55 55 Speech audiometry revealed speech recognition of 90 percent in the right ear and 92 percent in the left ear. The examiner opined that while the Veteran suffers from bilateral hearing loss, it is less likely related to his military service. In reviewing the record, the VA examiner found no objective evidence that links the Veteran’s hearing loss to his service. The Veteran had normal auditory thresholds upon separation, without significant decrease in thresholds beyond normal progression and test retest variability. Hearing loss during military service has been ruled out. The current hearing loss is not consistent with noise induced hearing loss. The VA examiner cited to the Institute of Medicine, which concluded that there is insufficient scientific evidence for delayed onset of hearing loss secondary to military noise exposure. There is also insufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop years after military noise exposure. The available anatomical and physiologic evidence suggests that delayed post exposure noise induced hearing loss is not likely. If the Veteran’s hearing is normal on discharge and there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. This opinion has not been challenged or undermined by any competent evidence. Here, the record does not contain evidence supporting a nexus between the Veteran’s hearing loss and his service besides the Veteran’s own testimony. However, while the Veteran is considered competent to describe his perception of diminished hearing acuity because lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, he is not considered competent to offer an opinion concerning the etiology of his hearing loss because such question is not amenable to lay observation alone and is too complex to be addressed by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, any allegation of diminished hearing acuity would be undercut by the fact that audiometric testing at separation failed to show hearing loss in either ear. While the evidence of record currently shows bilateral hearing loss, it lacks objective evidence supporting a positive nexus. Therefore, the criteria for service connection have not been met, and the Veteran’s claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel