Citation Nr: 21002378 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-23 577 DATE: January 13, 2021 ORDER New and material evidence not having been received, the claim of entitlement to service connection for gingivitis is not reopened. New and material evidence not having been received, the claim of entitlement to service connection for refractive error is not reopened. New and material evidence not having been received, the claim of entitlement to service connection for astigmatism is not reopened. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for residuals of meningioma, also claimed as brain tumor, is remanded. Entitlement to service connection for transient cerebral ischemic attack (TIA) is remanded. Entitlement to service connection for right fifth cranial nerve disability is remanded. Entitlement to service connection for a right ninth cranial nerve disability is remanded. Entitlement to service connection for pneumocephalus is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for mastoidectomy is remanded. Entitlement to service connection for right eye keratitis is remanded. Entitlement to service connection for right eye corneal abrasion is remanded. Entitlement to service connection for epiphora of the right eye is remanded. Entitlement to service connection for nystagmus is remanded. Entitlement to service connection for conjunctivitis is remanded. Entitlement to service connection for scar post-meningiotomy and craniotomy is remanded. Entitlement to service connection for residual scar of intramuscular injections is remanded. Entitlement to service connection for residual scar of peripherally in-centered central catheter line to the left arm is remanded. Entitlement to service connection for residual scar of thoracentesis is remanded. Entitlement to service connection for residual scar of tracheotomy is remanded. Entitlement to service connection for residual scar of cerebrospinal fluid (CSF) leakage to the lower back region is remanded. Entitlement to service connection for pleural effusion, claimed as unspecified pulmonary issues, is remanded. Entitlement to service connection for atelectasis is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right lower extremity disability, claimed as gait instability, is remanded. Entitlement to service connection for unspecified percutaneous endoscopic gastrostomy (PEG) tube is remanded. Entitlement to service connection for cricopharyngeal muscle hypertrophy, claimed as abnormal swallow and dysphagia, is remanded. Entitlement to service connection for a disability manifested by nausea and vomiting is remanded. Entitlement to service connection for dry and itchy skin is remanded. Entitlement to service connection for fever is remanded. Entitlement to service connection for hypokalemia is remanded. Entitlement to service connection for hyperthyroidism is remanded. Entitlement to service connection for nosebleed is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for sinusitis, claimed as upper respiratory infection, is denied. Entitlement to service connection for a left heel disability is remanded. Entitlement to service connection for a groin disability, claimed as a lump on the inner left hip, is remanded. Entitlement to service connection for a pelvic disability is remanded. Entitlement to service connection for cysts on the lower back is remanded. Entitlement to service connection for abnormal echocardiogram (ECG) is remanded. Entitlement to service connection for carotid duplex study is remanded. Entitlement to service connection for urinary tract infection (UTI) is remanded. FINDINGS OF FACT 1. A June 1999 rating decision denied a claim of service connection for gingivitis and astigmatism/refractive error; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for gingivitis has not been received since the June 1999 rating decision, and as such, the claim for entitlement to service connection for gingivitis is not considered reopened. 3. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for astigmatism has not been received since the June 1999 rating decision, and as such, the claim for entitlement to service connection for astigmatism is not considered reopened. 4. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claims of service connection for refractive error has not been received since the June 1999 rating decision, and as such, the claim for entitlement to service connection for refractive error is not considered reopened. 5. The preponderance of the evidence indicates that the Veteran does not have left ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The June 1999 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has not been received since the June 1999 denial of entitlement to service connection for gingivitis, and therefore the claim of entitlement to service connection for gingivitis is not considered reopened. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. New and material evidence has not been received since the June 1999 denial of entitlement to service connection for astigmatism, and therefore the claim of entitlement to service connection for astigmatism is not considered reopened. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 4. New and material evidence has not been received since the June 1999 denial of entitlement to service connection for refractive error, and therefore the claim of entitlement to service connection for refractive error is not considered reopened. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 5. The criteria for entitlement to service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1992 to August 1998 and from September 2001 to June 2002 in the United States Navy. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and October 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Board in October 2013 before a Veterans Law Judge (VLJ) who is no longer at the Board. The Veteran was offered an additional hearing in October 2017, but declined. A transcript of the October 2013 hearing has been associated with the claims file. The Board notes that actions requested in the prior remands have been undertaken with regards to the issues decided herein. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The duty to assist is not a one-way street. If a Veteran desires help, she cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became 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. § 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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). In a June 1999 rating decision, the RO denied service connection for gingivitis and astigmatism/refractive error. The Veteran did not file a notice of disagreement regarding the June 1999 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the June 1999 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2016); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gingivitis. The June 1999 rating decision denied service connection for gingivitis based upon a lack of evidence of dental trauma. The evidence received since the rating decision in June 1999 includes treatment records and lay statements regarding the Veteran’s gingivitis. The evidence of record at the time of the prior denial showed treatment for current gingivitis and included service treatment records showing gum issues during service. The Board notes, however, that gingivitis is not recognized as a service-connectable disability without evidence of dental trauma. Therefore, such evidence is not considered new and material and the claim for service connection for gingivitis is not reopened. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for refractive error. The question of reopening the claims of entitlement to service connection for refractive error and astigmatism will be addressed together as they stem from the same factual and legal basis. The Board notes that the Veteran has claimed additional eye disabilities, which are addressed on the merits in the body of the decision below. The June 1999 rating decision denied entitlement to service connection for a refractive error and astigmatism as the evidence failed to show a disability for which compensation may be established. Mere congenital or developmental defects and refractive error of the eye are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. Evidence received since the rating decision in June 1999 includes continued evidence of astigmatism and refractive error, but does not include evidence that indicates his refractive error or astigmatism were due to trauma or is not congenital or developmental. Therefore, such evidence is not new and material and the claims for service connection for a refractive error or astigmatism is not reopened. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for astigmatism. Please see the analysis in Section 2, above. 4. Entitlement to service connection for left ear hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that she has hearing loss that is causally related to service. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. A May 1998 separation report of medical examination noted the Veteran’s puretone thresholds in dB as follows: HERTZ 500 1000 2000 3000 4000 Left Ear 25 15 5 5 15 The Veteran was afforded a VA examination in April 1999. At the time of the examination, the Veteran’s puretone thresholds in dB were as follows: HERTZ 500 1000 2000 3000 4000 Left Ear 5 5 0 5 10 Speech discrimination scores were 94 percent bilaterally. The Board notes that this does not constitute hearing loss for VA purposes. During the April 1999 general medical VA examination, the Veteran gave a very vague history of hearing loss. She noted that she worked in the engine room on the ship. The Veteran was afforded a VA examination in August 2007 regarding a request for aid and attendance. The examiner noted hearing loss since surgery in 2007. The Veteran attended another VA examination in May 2010. At the time of the examination, the Veteran’s left ear puretone thresholds in dB were as follows: HERTZ 500 1000 2000 3000 4000 Left Ear 5 5 0 5 15 The speech discrimination score in the left ear was 100 percent and his hearing was noted as clinically normal. Again, the Veteran’s puretone thresholds do not show left ear hearing loss for VA purposes. The Board concludes that the Veteran does not have a current diagnosis of left ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believes she has a current diagnosis of left ear hearing loss, hearing loss for VA purposes is present when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. These findings are not capable of lay observation. The Veteran is therefore not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board concludes that the preponderance of the evidence is against finding that the Veteran currently has left ear hearing loss. REASONS FOR REMAND 1. Entitlement to service connection for residuals of meningioma, also claimed as brain tumor, is remanded. The Board regrets the need for further delay in the Veteran’s claim; however, the Veteran specifically asserted in her October 2013 hearing that her brain tumor is causally related to head trauma during service. The Board notes that the Veteran’s May 1998 separation report of medical history notes that she fell down a ladder on board ship and landed on her back and hit her head a little. The Board also acknowledges that the Veteran was afforded a VA examination in March 2020 that addressed whether the Veteran’s meningioma was present during service based upon the usual development of a meningioma, but did not address the question of whether the Veteran’s head trauma may have caused the Veteran’s brain tumor. With the evidence of head trauma during service and the Veteran’s assertions, the Board finds that a remand for an addendum medical opinion is necessary before a decision on the merits may be made. 2. Entitlement to service connection for TIA is remanded. The Veteran has asserted that her TIA, cranial nerve disabilities, mastoidectomy, keratitis, corneal abrasion, epiphora, nystagmus, conjunctivitis, multiple scars, pleural effusion, atelectasis, left elbow disability, right lower extremity disability, PEG tube, dysphagia, nausea and vomiting, dry skin, fever, hypokalemia, hyperthyroidism, nosebleed, right ear hearing loss, left heel disability, groin disability, pelvic disability, cysts of the back, abnormal ECG, carotid duplex study, and UTI are residuals of her brain tumor, to include residuals of surgery and treatment. The Veteran specifically claimed at her October 2013 hearing that her remaining disability claims are being claimed as secondary to her brain tumor. Therefore, these claims are inextricably intertwined with the Veteran’s claim of service-connection for residuals of a meningioma. Thus, a decision by the Board on these claims would, at this point, be premature. 3. Entitlement to service connection for right fifth cranial nerve disability is remanded. Please see the analysis in Remand Section 2, above. 4. Entitlement to service connection for a right ninth cranial nerve disability is remanded. Please see the analysis in Remand Section 2, above. 5. Entitlement to service connection for pneumocephalus is remanded. Please see the analysis in Remand Section 2, above. 6. Entitlement to service connection for headaches is remanded. The Board notes that the Veteran has separately asserted that her headaches may be due to her brain tumor, but also may be due to head trauma incurred during active service. On the May 1998 report of medical history, the Veteran reported current or past frequent or severe headaches. She seemed to relate the headaches to wearing glasses with the wrong prescription. The Board again acknowledges, however, that the Veteran reported on her separation report of medical history in May 1998 that she fell down a ladder while on board ship and landed on her back and hit her head a little. She also noted that the doctors did not find anything wrong with her head at the time. The VA examiner addressing any nexus between the Veteran’s head trauma and her brain tumor should also address whether her headaches first manifested during active service, are causally related to her head trauma during service, or are causally related to or aggravated by her brain tumor or any residuals of a brain tumor. 7. Entitlement to service connection for mastoidectomy is remanded. Please see the analysis in Remand Section 2, above. 8. Entitlement to service connection for right eye keratitis is remanded. Please see the analysis in Remand Section 2, above. 9. Entitlement to service connection for right eye corneal abrasion is remanded. Please see the analysis in Remand Section 2, above. 10. Entitlement to service connection for epiphora of the right eye is remanded. Please see the analysis in Remand Section 2, above. 11. Entitlement to service connection for nystagmus is remanded. Please see the analysis in Remand Section 2, above. 12. Entitlement to service connection for conjunctivitis is remanded. Please see the analysis in Remand Section 2, above. 13. Entitlement to service connection for scar post-meningiotomy and craniotomy is remanded. Please see the analysis in Remand Section 2, above. 14. Entitlement to service connection for residual scar of intramuscular injections is remanded. Please see the analysis in Remand Section 2, above. 15. Entitlement to service connection for residual scar of peripherally in-centered central catheter line to the left arm is remanded. Please see the analysis in Remand Section 2, above. 16. Entitlement to service connection for residual scar of thoracentesis is remanded. Please see the analysis in Remand Section 2, above. 17. Entitlement to service connection for residual scar of tracheotomy is remanded. Please see the analysis in Remand Section 2, above. 18. Entitlement to service connection for residual scar of CSF leakage to the lower back region is remanded. Please see the analysis in Remand Section 2, above. 19. Entitlement to service connection for pleural effusion, claimed as unspecified pulmonary issues, is remanded. Please see the analysis in Remand Section 2, above. 20. Entitlement to service connection for atelectasis is remanded. Please see the analysis in Remand Section 2, above. 21. Entitlement to service connection for a left elbow disability is remanded. Please see the analysis in Remand Section 2, above. 22. Entitlement to service connection for a right lower extremity disability, claimed as gait instability, is remanded. Please see the analysis in Remand Section 2, above. 23. Entitlement to service connection for PEG tube is remanded. Please see the analysis in Remand Section 2, above. 24. Entitlement to service connection for cricopharyngeal muscle hypertrophy, claimed as abnormal swallow and dysphagia, is remanded. Please see the analysis in Remand Section 2, above. 25. Entitlement to service connection for a disability manifested by nausea and vomiting is remanded. Please see the analysis in Remand Section 2, above. 26. Entitlement to service connection for dry and itchy skin is remanded. Please see the analysis in Remand Section 2, above. 27. Entitlement to service connection for fever is remanded. Please see the analysis in Remand Section 2, above. 28. Entitlement to service connection for hypokalemia is remanded. Please see the analysis in Remand Section 2, above. 29. Entitlement to service connection for hyperthyroidism is remanded. Please see the analysis in Remand Section 2, above. 30. Entitlement to service connection for nosebleed is remanded. Please see the analysis in Remand Section 2, above. 31. Entitlement to service connection for right ear hearing loss is remanded. Please see the analysis in Remand Section 2, above. 32. Entitlement to service connection for sinusitis is remanded. Please see the analysis in Remand Section 2, above. 33. Entitlement to service connection for a left heel disability is remanded. Please see the analysis in Remand Section 2, above. 34. Entitlement to service connection for a groin disability, claimed as a lump on the inner left hip, is remanded. Please see the analysis in Remand Section 2, above. 35. Entitlement to service connection for a pelvic disability is remanded. Please see the analysis in Remand Section 2, above. 36. Entitlement to service connection for cysts on the lower back is remanded. Please see the analysis in Remand Section 2, above. 37. Entitlement to service connection for abnormal ECG is remanded. Please see the analysis in Remand Section 2, above. 38. Entitlement to service connection for carotid duplex study is remanded. Please see the analysis in Remand Section 2, above. 39. Entitlement to service connection for UTI is remanded. Please see the analysis in Remand Section 2, above. The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the Veteran’s claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s meningioma is at least as likely as not related to head trauma during service. Following a complete review of the evidence of record and with consideration of the Veteran’s lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinions: a.) Is the Veteran’s meningioma at least as likely as not causally related to service, including her asserted head trauma during service? b.) Is the Veteran’s headache disability at least as likely as not causally related to service, including her asserted head trauma during service? c.) If the examiner finds that the Veteran’s meningioma is at least as likely as not causally related to service, the examiner should then list all residuals of the Veteran’s meningioma and residuals of any surgery or treatment. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 3. After undertaking the development above and any additional development deemed necessary, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, Associate 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.