Citation Nr: 20008205 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-63 570 DATE: January 30, 2020 ORDER Reopening of entitlement to service connection for a neck disorder is granted. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for hearing loss is granted. Entitlement to service connection for pseudofolliculitis barbae is granted. FINDINGS OF FACT 1. Entitlement to service connection for a neck disorder was denied in a May 2015 rating decision; the evidence received subsequently is new and material. 2. A neck disorder is not related to service. 3. The Veteran has bilateral hearing loss that is related to service. 4. The Veteran has pseudofolliculitis barbae that is related to service. CONCLUSIONS OF LAW 1. The May 2015 RO rating decision is final with respect to entitlement to service connection for a neck disorder. 38 U.S.C. § 7105 (West 2014). 2. The criteria for reopening of entitlement to service connection for a neck disorder have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2018). 3. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 5. The criteria for service connection for pseudofolliculitis barbae have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from January 1968 to January 1971. This appeal comes before the Board of Veterans’ Appeals (Board) from August 2015, July 2016, and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2019, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge sitting at Washington, DC. At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103 (2018). The record was held open for an additional 60 days following the hearing for the Veteran to submit additional evidence. A transcript of the hearing is associated with the claims file. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Reopening of entitlement to service connection for a neck disorder. In a May 2015 rating decision, VA denied service connection for a “neck condition.” The RO found that there was no injury or disease in service that could be related to a neck disability. In a May 2017 decision, the RO denied reopening of the claim. The May 2015 rating decision is the last disallowance on any basis. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998) (the Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to agency decision makers and material evidence is 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 final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). To reopen a claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. Where a prior denial was based on lack of current disability and nexus, newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In this case, a May 2016 opinion from Dr. Madaj (Record 09/27/2019) constitutes new and material evidence. While it is ultimately inconclusive, it addresses the unestablished fact of a nexus to service and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received and reopening of the claim of entitlement to service connection for a neck disorder is warranted. The claim of entitlement to service connection for a neck disorder is further addressed on the merits below. Entitlement to service connection for a neck disorder. Entitlement to service connection for hearing loss. Entitlement to service connection for pseudofolliculitis barbae. The Veteran testified at the Board hearing that he incurred a neck disorder due to a motor vehicle accident in the service, but that he didn’t report it because he was taking medication which masked the symptoms. He also testified that he has had shaving bumps since the service, and that he was exposed to loud sounds which resulted in hearing loss. Service treatment records reveal that the Veteran was treated following a motor vehicle accident in May 1969. No neck symptoms were reported and an X-ray was negative regarding the cervical spine clavicle and ribs (Record 07/26/1971). A September 11, 1970, physical profile reveals that the Veteran was relieved from shaving for 15 days due to skin irritation (Record 06/21/1971 at 26). On examination the same day, the Veteran had razor bumps on his chin (Record 06/21/1971 at 47). At service separation, the report of medical examination was not completed by the examiner (Record 12/20/2004 at 45). However pure tone thresholds were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 A February 10, 1999 (Record 10/18/2004 at 7), audiogram shows the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 10 26 When examined in May 2015, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 40 25 LEFT 20 15 25 45 40 Speech recognition was 96 percent in the right ear and 94 percent in the left ear. The examiner opined that the Veteran’s hearing loss was at least as likely as not related to noise exposure in service. The rationale was that the Veteran reported noise exposure and VA had conceded probable hazardous noise exposure in service (Record 05/27/2015). The Veteran testified in May 2015 that he fired automatic weapons in the service and threw hand grenades (Record 05/12/2016). The RO apparently requested another opinion, which was provided in August 2015 by a different examiner than the one who provided the May 2015 opinion. The August 2015 examiner opined that the Veteran’s hearing loss was not related to service. The rationale was that the Veteran’s MOS of Stock Control and Accounting Specialist had a low probability of exposure to hazardous noise (Record 08/19/2015). A private medical opinion dated November 17, 2015, states that the Veteran’s hearing loss is at least as likely as not related to his military noise exposure. The rationale was that exposure to automatic weapons results in hearing loss (Record 05/12/2016). A May 2016 opinion from T. Madaj, MD, states that the Veteran was involved in a motor vehicle accident in 1969 and “It is certainly possible” that his current pain could be related to that motor vehicle accident (Record 09/27/2019). A medical examination was obtained in July 2016 regarding pseudofolliculitis barbae. The examiner commented that no records could be found regarding pseudofolliculitis barbae (Record 07/07/2016). A VA examination in November 2016 includes the medical opinion that the diagnosed cervical degenerative disc disease is less likely than related to service. The rationale was that was that the record does not support a cervical spine injury in service related to the acknowledged motor vehicle accident. No ongoing neck issues were note on the service separation examination or at the time of evaluation (Record 11/30/2016). A May 2017 VA examination finds that the Veteran’s cervical spine disorder is less likely as not related to service. The rationale was that there is no continuity of symptoms between the motor vehicle accident on June 26, 1969, which does not document neck pain, and the first record of documented neck pain on June 25, 2005. Also, the separation examination on November 8, 1970, is silent regarding neck pain (Record 05/17/2017). An October 2019 opinion from R. Ward, Aud., states that the Veteran’s hearing loss is at least as likely as not related to service (Record 11/04/2019). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for bilateral hearing loss and pseudofolliculitis barbae have been met; however, the criteria for entitlement to service connection for a neck or cervical spine disorder have not been met. The Board notes that there are two opinions regarding the etiology of hearing loss provided by VA. One is against service connection and one is in favor of service connection. There are also two private opinions in favor of service connection. The distinction between the VA opinions appears to be based on presumed exposure to hazardous levels of noise in service. The August 2015 examiner found that the level of noise exposure based on the Veteran’s MOS was not sufficient to cause hearing loss. Oddly, the same examiner found that the Veteran’s tinnitus was related to service. The rationale was that “the claimant reports that there was exposure to hazardous noise.” The examiner continued that, most likely there was outer hair cell damage that triggered tinnitus but the outer hair cell damage was not severe enough to have caused hearing loss. The Board finds the August 2015 VA examiner’s rationale that the Veteran sustained just enough noise exposure to trigger tinnitus, but not enough to trigger hearing loss, to be unconvincing. The examiner points to no evidence other than the Veteran’s MOS to substantiate the conclusion that the Veteran was not exposed to sufficiently loud sounds to cause hearing loss. This is speculation on the part of the examiner. The Veteran has provided competent and persuasive evidence that he was exposed to loud sounds during his service. The record now contains three opinions in favor of service connection. The Board finds that the Veteran’s hearing loss is related to service. The Board also finds that pseudofolliculitis barbae is related to service. The Veteran clearly was treated for the same condition in the service. He has testified that he has experienced the same condition periodically since service. Accordingly, the Board finds that pseudofolliculitis barbae is related to service. While the Veteran has submitted a private medical opinion regarding a cervical spine disorder, it is worded inconclusively. The statement that it is possible that the Veteran’s current pain could be related to service also includes the equivalent possibility that his pain is not related to service. The United States Court of Appeals for Veterans Claims (Veterans Court) has repeatedly and consistently rejected medical opinions raising only a possibility of medical nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In essence, the opinion establishes only that a nexus to service is not impossible. This does not reach the level of an approximate balance of the evidence. The evidence pertinent to service establishes that the Veteran did not complain of cervical spine symptoms at the time of the motor vehicle accident in service, and that he was not treated for the condition for many decades after service. There is no medical opinion that purports to relate, by conclusive language, a current cervical spine disorder to service. The Board has considered the Veteran’s statements regarding etiology. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). The Board finds that relating a current diagnosis of a cervical spine disorder to remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge which is not capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between the claimed cervical spine disorder and service. In sum, the Board finds that service connection for bilateral hearing loss and pseudofolliculitis barbae is warranted. As this represents the full benefit sought on appeal with respect to each claim, there is no prejudice resulting from any deficiencies in the duties to notify and assist. The Board also finds that service connection for a neck/cervical spine disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.