Citation Nr: 20002248 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 12-15 168 DATE: January 10, 2020 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a left forearm disorder. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to an effective date of November 22, 2000 and no earlier for a 10 percent rating for residuals of right chest gunshot wound is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a rating greater than 10 percent for residuals of right chest gunshot wound is remanded. Entitlement to service connection for a left forearm disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right thigh/hip disorder is remanded. Entitlement to service connection for a left thigh/hip disorder is remanded. FINDINGS OF FACT 1. By letter dated in November 2000, VA confirmed the prior denial of entitlement to service connection for the left forearm; the Veteran did not appeal this decision and new and material evidence was not submitted within one year of the letter. 2. New evidence submitted since the final November 2000 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left forearm disorder. 3. The preponderance of the evidence is against finding that the Veteran has a current hearing loss disability related to active service or events therein, to include noise exposure; and there is no evidence of bilateral hearing loss manifested to a compensable degree within one year following discharge from active service. 4. The Veteran is competent to report the onset of tinnitus during service and continuing to date, and the record does not contain evidence to the contrary. 5. Following the final December 1969 rating decision that assigned a noncompensable rating for residuals of right chest gunshot wound, the Veteran submitted a claim for increase on September 22, 2000; a factually ascertainable increase in disability was not shown in the one-year prior. CONCLUSIONS OF LAW 1. The November 2000 rating decision is final; and new and material evidence has been received to reopen the claim of entitlement to service connection for a left forearm disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. Bilateral hearing loss was not incurred during service nor may it be presumed to have been incurred therein. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Tinnitus was incurred during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for an effective date of September 22, 2000 and no earlier for a 10 percent rating for residuals of a right chest gunshot wound have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.56, 4.73, Diagnostic Code 5321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1969. The May 2012 statement of the case also addressed the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). In August 2013, VA granted entitlement to service connection for PTSD. The appeal of this issue is resolved and no longer for consideration. The Board acknowledges that additional evidence was added to the record following certification and transfer to the Board. The Board has determined after a review of the evidence submitted that a waiver of the additional evidence (or a remand, if a waiver is not obtained) is not required to comply with 38 C.F.R. § 20.1304(c) as the evidence either pertains to issues other than the sole issue denied herein or essentially duplicates information already of record. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left forearm disorder In December 1969, VA denied entitlement to service connection for residuals of a left forearm contusion essentially based on findings that x-ray failed to show any fracture involving the bones of the left forearm and residuals were not shown on examination. The Veteran did not appeal this decision and it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In September 2000, the Veteran requested to reopen his claim. By letter dated in November 2000, VA confirmed the prior denial of entitlement to service connection for the left forearm noting that new and material evidence was needed to reopen the claim. The Veteran did not appeal this decision and it is also final. Id. In November 2009, the Veteran again requested to reopen his claim. In April 2010, VA denied entitlement to service connection for left forearm contusion. The Veteran disagreed with the decision and perfected this appeal. Although the Agency of Original Jurisdiction (AOJ) adjudicated this case on the merits, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Relevant evidence of record at the time of the November 2000 rating decision included the Veteran’s claim, VA examination, and service treatment records. In his original claim, the Veteran reported a left arm injury. Service treatment records show that on report of medical history completed at induction in December 1966, the Veteran reported a left arm fracture in 1965. It was reportedly well healed but dislocated easily. He further reported that he was advised to have surgery on his left shoulder. On corresponding physical examination, the upper extremities were reported as normal on clinical evaluation. In February 1968, the Veteran reported he fell on a tree limb and struck his right forearm. X-ray of the right forearm was negative for fracture and impression was contusion of the right forearm. In April 1969, the Veteran complained of irregular episodes of numbness and paresthesias in the left forearm, arm and shoulder. Physical examination showed a depression of muscle mass of the left lateral proximal forearm. Impression was old injury. On report of medical history completed at separation in May 1969, the Veteran reported swollen, painful left shoulder and elbow. Upper extremities were reported as normal on corresponding clinical evaluation. The Veteran underwent a VA examination in October 1969. X-rays of the left forearm did not show any evidence of fracture and on physical examination, there were normal movements of the elbow and wrist without atrophy or deformity. Assessment was history of left forearm fracture – no abnormalities found. Since the final November 2000 decision, additional evidence has been added to the record. This includes the Veteran’s statements wherein he provides additional detail concerning the claimed injury (i.e., sustained during a fire fight when a tree limb fell on his left forearm and fractured it). A December 2014 VA record notes a bone deformity of the left forearm from fracture 30 years prior. An April 2017 physical therapy record indicates abnormal tissue texture in the left forearm and following treatment, his left forearm seemed less indented from the prior injury. This evidence is new as it was not previously considered. It is also material in that it arguably suggests a current disability related to service. The claim is reopened herein. Shade. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to service connection for bilateral hearing loss In April 2010, VA denied entitlement to service connection for bilateral hearing loss. The Veteran disagreed with the decision and perfected this appeal. He generally contends he has hearing loss related to inservice acoustic trauma. The Veteran’s DD Form 214 shows his military occupational specialty as wheeled vehicle repairman. This specialty has a high probability of noise exposure. Additionally, the Veteran served in Vietnam and was awarded the Combat Infantryman Badge. Inservice noise exposure is clearly established and the question for the Board is whether the Veteran has a current hearing loss disability related to same. Service treatment records are negative for complaints or findings related to hearing loss. On report of medical history completed in May 1969, the Veteran denied any hearing loss. On corresponding separation examination, the Veteran’s ears were reported as normal on clinical evaluation and audiometric testing did not show a hearing loss disability for VA purposes at the levels tested. Results were not provided at the 3000 Hertz level; however, an undated audiogram included in the STRs did not show a hearing loss disability for VA purposes at the 3000 Hertz level or any other level tested in either ear. 38 C.F.R. § 3.385. A compensable hearing loss was not shown within one year following discharge from active service and presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309. On VA examination in January 2010, the Veteran reported a progressive, fluctuating hearing loss, worse on the right, that began 10 to 15 years ago. Objectively, audiologic findings were inconsistent. The examiner stated that due to inconsistent responses, the reported test results were not considered reliable and did not provide an accurate representation of hearing sensitivity. The Board observes that the Veteran has a duty to cooperate with examinations. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). On review, the record does not contain reliable audiometric findings showing a current hearing loss disability for VA purposes nor is there probative evidence relating any such hearing loss to active service or events therein, to include noise exposure. In making this determination, the Board acknowledges the Veteran’s contentions but notes he is not competent to diagnose a hearing loss disability for VA purposes or to provide an opinion as to etiology as such requires medical expertise and specialized diagnostic testing. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007)., The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus In April 2010, VA denied entitlement to service connection for tinnitus. The Veteran disagreed with the decision and perfected this appeal. He generally contends that tinnitus began during service and is related to inservice noise exposure. Service treatment records are negative for complaints or findings of tinnitus. On VA examination in January 2010, the Veteran reported tinnitus which began in service due to noise from artillery without hearing protection. Other military noise exposure included rockets and grenades. He denied a history of occupational or recreational noise exposure. The examiner did not provide an opinion concerning the etiology of tinnitus. The Veteran’s reports of excessive noise exposure are consistent with the circumstances of his service and as discussed above, acoustic trauma is established. Tinnitus is a disorder that can be observed by a lay person and the Veteran is competent to report he experienced ringing in his ears during service. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds no reason to doubt the Veteran’s credibility concerning the onset of tinnitus and continuing symptoms and the record does not contain evidence to the contrary. Accordingly, service connection is warranted. Effective Date Entitlement to an effective date prior to November 12, 2009 for a 10 percent rating for residuals of right chest gunshot wound In December 1969, VA granted entitlement to service connection for scar residuals of gunshot wound to the left chest and assigned a noncompensable rating. The Veteran did not appeal this decision and it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Review of service records indicates the location of the gunshot wound was the right chest and this was subsequently corrected on the code sheet. On November 12, 2009, VA received a claim for increase. In April 2010, VA continued a noncompensable rating for residuals of right chest gunshot wound. The Veteran disagreed with the decision and in May 2012, VA increased the rating to 10 percent from November 12, 2009. The Veteran disagreed with the effective date and subsequently perfected this appeal. In his September 2013 Form 9 he requested an earlier effective date of June 21, 1969. He argued that the examiner’s notation of a retained foreign body would indicate this level of disability was present since service. The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See §§ 3.151, 3.155. The amended regulations apply to claims filed on or after March 24, 2015 and are not for application in this case. For claims filed prior to March 24, 2015, a “claim” or “application” was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication indicating intent to apply for one or more benefits. The benefit being sought must be identified. 38 C.F.R. § 3.155. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c). The December 1969 rating decision is final. The Board acknowledges that the July 2013 statement of the case indicates that there was no clear and unmistakable error in that decision. Regardless, the Veteran has not specifically raised clear and unmistakable error in the original rating decision. In determining whether the Veteran is entitled to an earlier effective date, the Board must consider whether he filed a claim for increase prior to November 12, 2009. On review, the Veteran submitted a VA Form 21-526 on September 22, 2000 and at that time, he claimed various disabilities to include “pain in the right chest due to gunshot wound in service retained fragments.” This indicates an intent to file a claim for increase for residuals of right chest gunshot wound. In November 2000, VA continued the previous denials of service connection for tonsillitis and a left forearm disorder but there is no indication they considered the claim for increase and it remained pending. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the 10 percent rating is warranted as of the September 22, 2000 date of claim. A factually ascertainable increase in disability was not shown in the one-year prior to this date of claim. See 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5321. REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent for residuals of right chest gunshot wound is remanded. The Veteran contends that the 10 percent rating does not adequately reflect the severity of his disability. On review, VA increased the rating for the Veteran’s disability under Diagnostic Code 5321 which addresses impairment of muscle group XXI. The Veteran’s residuals of gunshot wound were initially evaluated under Diagnostic Code 7805 (scars) and he last underwent a VA scar examination in May 2012. There is no indication he was afforded a VA muscle examination. The Board notes that the findings necessary to rate a muscle disability are not necessarily included in the scars examination. Considering this, and the length of time since examination, a current examination is needed. 38 C.F.R. § 3.327. 2. Entitlement to service connection for a left forearm disorder is remanded. 3. Entitlement to service connection for a left shoulder disorder is remanded. As discussed, the claim for service connection for a left forearm disorder is reopened herein. Additional development is needed prior to a decision on the merits for the claimed left forearm and left shoulder disorders. 38 C.F.R. § 3.159(c). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). On induction examination in February 1966, the Veteran reported a left arm fracture in 1965. He did not indicate whether this involved the humerus, radius, and/or ulna, but did report dislocations and that he was advised to have surgery on the left shoulder. On clinical examination in February 1966, the upper extremities were reported as normal and the examiner specifically indicated that “examination of [left]shoulder reveals no objective findings.” Considering this, the Board finds that neither a left forearm or left shoulder disorder was “noted” at enlistment. When no preexisting disorder is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that a veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Service treatment records indicate that the Veteran suffered a right forearm contusion in February 1968 when he fell on a tree limb. He was seen and evacuated for x-ray, but the ship evacuating him was shot up and forced to land at a different facility. X-ray of the right forearm was negative for fracture and impression was contusion right forearm. He was admitted for the night and was to get back to his unit in the morning. The following day he was seen for removal of a plaster cast. Notwithstanding the above, the Veteran contends that he injured his left forearm and dislocated his left shoulder when a tree limb fell on him. See June 2010 statement. The Veteran’s DD Form 214 shows he was awarded a Combat Infantryman Badge and the Board accepts that he suffered a left arm and shoulder injury during combat service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran was provided a VA joints examination in February 2010. Diagnoses were (1) contusion of left forearm without fracture; and (2) dislocation left shoulder not related to forearm injury. The examiner opined that after review of the records and the history, the complaints referable to the forearm were less likely than not related to the contusion experienced by the Veteran in Vietnam. The examiner further opined that the shoulder dislocations were less likely than not related to the forearm injury because those were two separate and distinct joints and one does not cause the other. On review, the above examination does not consider the correct evidentiary standards and the rationale is inadequate. Further examination is needed. 38 C.F.R. § 3.159(c)(4). 4. Entitlement to service connection for a right thigh/hip disorder is remanded. 5. Entitlement to service connection for a left thigh/hip disorder is remanded. In April 2010, VA denied entitlement to service connection for right and left thigh pain. The Veteran disagreed with the decision and perfected this appeal. The Board has recharacterized the issues as thigh/hip to better reflect the evidence of record and to include any disability that may reasonably be encompassed by his symptomatology. The Veteran claimed service connection for bilateral thigh conditions, left greater than right, but has not otherwise offered specific contentions. Review of VA treatment records, however, shows the Veteran is prescribed Capsaicin for hip and thigh pain and the active problem list includes hip arthritis and iliotibial band friction syndrome. The records also note a prior medical history of a bullet wound to the left hip. In April 2014, the Veteran denied a bullet wound to the right hip but reported that he had trauma to the right hip in Vietnam. The reported injuries are not documented in the service treatment records and the Veteran’s lower extremities were reported as normal at separation. As previously noted, the combat presumption assists the Veteran in establishing an inservice injury. 38 C.F.R. § 3.304(d). The Veteran should be afforded an opportunity to provide further details as to the claimed injuries. Additionally, the Veteran was not provided an examination on these issues and considering the foregoing, the Board finds that one is warranted. 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA muscles examination by an appropriate clinician to determine the severity of residuals of right chest gunshot wound since September 2000 when this claim began. The examiner should provide a full description of the disability and report all signs and symptoms of the Veteran’s disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left forearm and left shoulder disorders. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. For purposes of the examination, please accept as fact that the Veteran injured his left forearm and left shoulder during combat service in Vietnam. The examiner is requested to address the following questions: (a) Did any left forearm and/or left shoulder disorder clearly and unmistakably exist prior to the Veteran’s period of active service beginning in June 1967? In making this determination, consider the Veteran’s medical history, accepted medical principles, evidence regarding the basic character, origin and development of the disorder, and lay and medical evidence concerning the inception, development and manifestations of the disorder. (b) If any left forearm and/or left shoulder disorder clearly and unmistakably existed prior to service, is there clear and unmistakable evidence that it was not aggravated in service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? (c) If any left forearm and/or left shoulder disorder did not clearly and unmistakably exist prior to service, is it at least as likely as not that it is related to active service or events therein, to include the reported left forearm and shoulder injury sustained during combat service in Vietnam. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Contact the Veteran and ask him to provide details concerning the injuries (left hip bullet wound and right hip injury in Vietnam) that are noted in VA treatment records. 4. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right or left thigh/hip disorders. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. The examiner is requested to identify all disorders of the right and left thigh/hip and to opine whether any such disorder is at least as likely as not related to active service or events therein, to include any injuries during combat service. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. M.C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.