Citation Nr: 1808861 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-13 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for bilateral hearing loss. 2. Entitlement to service connection for lumbar spine disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for residuals, fractured skull. 5. Entitlement to service connection for a traumatic brain injury. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for vertigo. 8. Entitlement to service connection for neurological disability of the bilateral lower extremities, claimed as pain and muscle spasms. 9. Entitlement to service connection for neuropathy of the left upper extremity. 10. Entitlement to service connection for neuropathy of the right upper extremity. 11. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 12. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that while the Veteran was previously represented by a private attorney, the Board notified the Veteran in November 2014 that his representative was no longer accredited to represent claimants before VA. The Veteran has not appointed a new attorney, agent, or representative, and he is thus unrepresented. The Board also notes that, in the VA Form 9 submitted in April 2014, the Veteran indicated that he wanted to provide testimony at a Travel Board hearing. The Veteran was notified in early July 2017 that his hearing was scheduled for July 27, 2017 at the RO. However, the Veteran failed to report for the hearing. Therefore, his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704 (d) (2016). The issue of entitlement to service connection for bilateral hearing loss and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. In January 2010, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran did not appeal this decision and it became final. 2. Evidence added to the record since the January 2010 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss. 3. The Veteran's lumbar spine disability resulted from his own willful misconduct, and did not occur in the line of duty. 4. The Veteran's cervical spine disability resulted from his own willful misconduct, and did not occur in the line of duty. 5. The Veteran's residuals, fractured skull resulted from his own willful misconduct, and did not occur in the line of duty. 6. The Veteran's traumatic brain injury resulted from his own willful misconduct and did not occur in the line of duty. 7. The Veteran's headache disability resulted from his own willful misconduct and did not occur in the line of duty. 8. The Veteran's vertigo disability resulted from his own willful misconduct and did not occur in the line of duty. 9. The Veteran's neurological disability of the bilateral lower extremities, claimed as pain and muscle spasms resulted from his own willful misconduct and did not occur in the line of duty. 10. The Veteran's neuropathy of the left upper extremity disability resulted from his own willful misconduct and did not occur in the line of duty. 11. The Veteran's neuropathy of the right upper extremity disability resulted from his own willful misconduct and did not occur in the line of duty. 12. The Veteran's acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) resulted from his own willful misconduct and did not occur in the line of duty. CONCLUSIONS OF LAW 1. The January 2010 rating decision, which denied the Veteran's claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for the lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 4. The criteria for service connection for the cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 5. The criteria for service connection for the residuals, fractured skull disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 6. The criteria for service connection for the traumatic brain injury have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 7. The criteria for service connection for the headache disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 8. The criteria for service connection for vertigo disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 9. The criteria for service connection for the neurological disability of the bilateral lower extremities, claimed as pain and muscle spasms have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 10. The criteria for service connection for the neuropathy, left upper extremity disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 11. The criteria for service connection for the neuropathy, right upper extremity disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). 12. The criteria for service connection for the acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.1(n), 3.301, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist has been satisfied. All identified outstanding evidence has been obtained to the extent possible. II. New and Material Evidence The Veteran's claim for service connection for bilateral hearing loss was denied by the RO in a January 2010 rating decision. The Veteran did not appeal the decision nor did he submit any relevant evidence within one year of the decision; therefore it is final. See 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the January 2010 rating decision consisted of the Veteran's service treatment records. The claim was denied because the evidence of record failed to show that any current hearing loss was related to the Veteran's military service. The evidence added to the record since the January 2010 rating decision consists of outpatient treatment records and a VA hearing loss and tinnitus examination. This evidence is "new," as it was not previously submitted to agency decision makers. Some of it is also material as it relates to unestablished facts necessary to substantiate the claim; specifically, the RO granted the Veteran's claim for service-connection for tinnitus based on the findings of the February 2013 VA examination which noted that the Veteran was exposed to military noise in the course of his duties as a repairman in the motor pool. Accordingly, the claim for service connection for bilateral hearing loss is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The appeal is granted to that extent only. III. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection can be established only when a disability was incurred, due to, or aggravated in the line of duty, and not the result of the veteran's own willful misconduct. 38 U.S.C. §§ 105(a), 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301(a). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct, and willful misconduct will not be determinative unless it is the proximate cause of injury. 38 C.F.R. § 3.1 (n)(2), (3). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for a lumbar spine disability, cervical spine disability, bilateral neurological condition of the lower extremities, neuropathy of the left upper extremity, neuropathy of the right upper extremity, headaches, vertigo, traumatic brain injury, and an acquired psychiatric disorder claimed as posttraumatic stress disorder, which he asserts are the result of an in-service fall. As explained below, the Board finds that the Veteran's claims for service connection for a lumbar spine disability, a cervical spine disability, bilateral neurological condition of the lower extremities, neuropathy of the left upper extremity, neuropathy of the right upper extremity, headaches, vertigo, traumatic brain injury, and an acquired psychiatric disorder claimed as posttraumatic stress disorder, must be denied as a matter of law as the injuries are due to his own willful misconduct. The evidence of record shows that the Veteran was injured in a fall from a window on December 4, 1976. Generally, a Veteran is entitled to service connection for a current disability that is due to an in-service injury. 38 C.F.R. § 3.303(d). However, federal regulations provide direct service connection may not be granted, nor may compensation be paid, when a disability is the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of the Veteran's abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. § 3.301. The evidence of record includes a Report of Investigation, Line of Duty and Misconduct Status Investigation dated April 8, 1977. The report documents that the Veteran sustained a fracture, distal radius and ulna, and cerebrospinal otorrhea second to trauma from a fall from a window. . The Veteran was locked out of his room for approximately 24 hours and decided to attempt to enter his room through a window. He secured a rope to the radiator in the room above his and attempted to scale down the outside wall to his window. He slipped off the rope and fell approximately 30 feet. The Veteran admitted that he did not really know what he was doing in scaling down the wall and that he acted in total disregard of his own personal safety. The investigating officer determined that the injuries the Veteran sustained were due to his own misconduct and not incurred in the line of duty. . The investigating officer also noted that the Veteran did not fully utilize the chain of command to gain help in entering his room. In December 2009, an Administrative Decision was promulgated on the question of whether the Veteran's traumatic brain injury (to include blurred vision and headaches), broken arm, fractured skull and back injury were sustained in the line of duty. The Administrative Decision referenced the April 1977 Line of Duty investigation which determined that the Veteran's injuries were due to his own misconduct. Additionally, the Administrative Decision noted that a Line of Duty review completed in May 1977 by the Adjutant General's Office concurred with the finding that the Veteran's injuries were incurred as the result of his reckless conduct. The Administrative Decision concluded that the Veteran's fall from the second floor window was not considered to be in the Line of Duty. The Veteran admitted in a sworn statement that he attempted to scale down the wall to his room, not really knowing what he was doing and acting in total disregard for his own personal safety. The Board notes that, in general, it is bound by service department determinations concerning willful misconduct. See generally 38 C.F.R. § 3.1(n) (2017). A finding of willful misconduct is determinative where it is the proximate cause of an injury. See 38 C.F.R. § 3.1(n)(3) (2017). In this case, the service department determined that the Veteran's willful misconduct in scaling a wall in an attempt to enter his room was the proximate cause of his lumbar spine disability, cervical spine disability, traumatic brain injury. Therefore, the Board finds that service connection for these injuries and for injuries claimed on a secondary basis to the aforementioned injuries - specifically bilateral neurological condition of the lower extremities, neuropathy of the left upper extremity, neuropathy of the right upper extremity, headaches, vertigo, acquired psychiatric disorder claimed as posttraumatic stress disorder must be denied as a matter of law. ORDER New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder is reopened. Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for residuals, fractured skull is denied. Entitlement to service connection for a traumatic brain injury is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for vertigo is denied. Entitlement to service connection for neurological disability of the bilateral lower extremities, claimed as pain and muscle spasms is denied. Entitlement to service connection for neuropathy of the left upper extremity is denied. Entitlement to service connection for neuropathy of the right upper extremity is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) is denied. REMAND Although the Board regrets the delay, it finds that a remand is needed prior to adjudication of the Veteran's claim of entitlement to service connection for bilateral hearing loss and entitlement to a TDIU. The Veteran's DD 214 indicates his military occupational specialty (MOS) was that of a materiel supply specialist assigned to a maintenance company. In February 2013, the Veteran was afforded a VA hearing loss and tinnitus examination. The notes from the tinnitus examination indicate that the Veteran reported a history of military noise exposure from large vehicles in the course of his duties in the repair motor pool. Audiometric testing revealed sensorineural hearing loss. However, no information regarding the Veteran's exposure to military noise and/or post service noise exposure is noted in the hearing loss section of the examination report. The examiner determined that, because the Veteran's hearing was normal on his enlistment examination and his separation examination, it was not at least as likely as not that the Veteran's hearing loss was caused by or a result of his military service. The Board assigns little probative value to the February 2013 medical opinion regarding the etiology of the Veteran's hearing loss as the examiner used a lack of evidence showing hearing loss upon separation to support the opinion that the Veteran's current bilateral hearing loss is not related to his period of active service. Under 38 C.F.R. § 3.385, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Furthermore, although the examiner noted the Veteran's statements concerning in-service noise exposure in the Veteran's tinnitus examination, the examiner did not address or consider this statement or its significance in his hearing loss opinion. For these reasons, the Board finds that the February 2013 hearing loss opinion is inadequate and that an addendum opinion is needed which fully considers and addresses the evidence of record. On remand, the RO should also obtain any outstanding VA treatment records, as they were last updated in 2016. With regard to the Veteran's claim of entitlement to a TDIU, the Board notes that the only service-connected disability at the present time is tinnitus which is rated as 10 percent disabling. As entitlement to a TDIU is inextricably intertwined with the claim of entitlement to service connection for bilateral hearing loss, the Board finds that the claim for a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding, pertinent VA treatment records and associate them with the electronic file to the extent possible. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 2. After obtaining any outstanding records, return the file to the VA examiner who conducted the February 2013 audiology examination. The electronic file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the electronic file and the Remand have been reviewed. If the February 2013 VA examiner is not available, the electronic file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner is asked to provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, specifically noise exposure the Veteran experienced in the course of his duties as a materiel specialist and in the repair motor pool? In providing this opinion, the examiner must recognize the fact that no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss. The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer's clinical experience, medical expertise, and established medical principles. However, if the examiner cannot respond to an inquiry without resort to mere speculation, (s)he should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. 3. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran a supplemental statement of the case and, after allowing an appropriate period of time for response, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs