Citation Nr: 21070456 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-01 134 DATE: November 24, 2021 ORDER As new and material evidence has been received, entitlement to service connection for a disability of the upper extremities, to include residuals of bilateral frostbite of the hands, is reopened. As new and material evidence has been received, entitlement to service connection for a bilateral hearing loss disability is reopened. REMANDED Entitlement to service connection for a disability of the upper extremities, to include residuals of bilateral frostbite of the hands, is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. A May 2010 rating decision denied service connection for residuals of bilateral frostbite of the hands and for bilateral hearing loss, and VA notified the Veteran of the decision in May 2010. 2. The Veteran did not appeal the May 2010 rating decision, and VA did not receive new and material evidence within one year of the notice. 3. Evidence received since May 2010 raises a reasonable possibility of substantiating the claim for residuals of bilateral frostbite of the hands. 4. Evidence received since May 2010 raises a reasonable possibility of substantiating the claim for bilateral hearing loss. CONCLUSIONS OF LAW 1. The May 2010 rating decision is final. 38 U.S.C. § 7105(c) ; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. Evidence received since the May 2010 rating decision is new and material, and the criteria for reopening a claim for a disability of the upper extremities, to include residuals of bilateral frostbite of the hands, are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Evidence received since the May 2010 rating decision is new and material, and the criteria for reopening a claim for bilateral hearing loss disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1991. The Veteran served during the Persian Gulf War in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) from an appeal of a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (Vet. App. 2010). In this case, a May 2010 rating decision denied service connection for residuals of bilateral frostbite of the hands and for a bilateral hearing loss disability. It denied the residuals of bilateral frostbite claim, despite the fact that the Veteran had a positive nexus opinion in his treatment records, because the RO did not find there was documented evidence of an in-service event or injury. It denied the bilateral hearing loss claim because the Veteran did not have a current disability in the left ear, and because the RO found no nexus between his service and his right ear disability. VA notified the Veteran of the decision in May 2010; however, the Veteran did not initiate an appeal and VA did not receive new and material evidence within one year of the notice. Accordingly, the Board finds that the May 2010 decision is final. See 38 U.S.C. § 7105(c) ; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. The Board finds that evidence received since the May 2010 rating decision raises a reasonable possibility of substantiating each of the claims on appeal. With regard to the bilateral frostbite disability, the evidence includes testimony given by the Veteran at a January 2016 hearing before a Decision Review Officer. This hearing testimony includes details of two in-service events, including repeatedly parachuting into a lake and undergoing winter training in the mountains of Italy. Notably, the Veteran's earlier statements about his cold-weather injury did not include specific details. See May 2010 Rheumatology Consultation Report, VA Medical Center (VAMC) Treatment Records. Therefore, the Board finds that the January 2016 hearing testimony is not cumulative. The Board presumes the evidence to be credible for the purposes of reopening. The Board finds that this new evidence triggers VA's duty to provide an examination and raises a reasonable possibility of substantiating that the frostbite occurred during service. As VA received new and material evidence, this claim is reopened. See 38 C.F.R. § 3.156(a). With regard to the bilateral hearing loss disability, the Veteran asserted in his 2017 social security disability claim that he has a hard time understanding some people. See July 2017 Function Report Adult, Social Security Administration. This notation about limitation in understanding the speech of others was not present in the file prior to 2017. There is also a notation in the Veteran's claims file that in 2017, he participated in a study to characterize vestibular dysfunction, which can be a source of hearing loss in Gulf War Illness. See November 2016 Research Consent and Contact, VAMC Treatment Records. This raises a reasonable possibility that the Veteran's hearing loss was caused by his Gulf War service. In 2018, the Veteran complained that he had ringing in his ears, which was getting worse. See, e.g. April 2018 Addendum Note, VAMC Treatment Records. At that time, the Veteran specifically related his ear trouble to service. See April 2018 Primary Care Note, VAMC Treatment Records. As a result, the Veteran requested an audiological consult. Id. The Veteran was scheduled for such a consult on April 25, 2018. April 2018 Addendum from J.P., R.N., VAMC Treatment Records. However, the results of this audiological consult are not associated with the Veteran's claims file. In total, the Board finds that this information is not cumulative and presumes the evidence to be credible for the purposes of reopening. The Board finds that the evidence would trigger VA's duty to provide an examination. The Board finds the evidence raises a reasonable possibility of substantiating a bilateral hearing loss disability, which the evidence did not establish at the time of the prior decision. As VA received new and material evidence, the claim of entitlement to service connection for bilateral hearing loss is reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a disability affecting the upper extremities, to include residuals of bilateral frostbite of the hands, is remanded. The Board notes that the Veteran originally filed a claim of entitlement to service connection for residuals of bilateral frostbite of the hands. However, some of the treatment records in the Veteran's claims file have characterized the pain in his hands as resulting from carpel tunnel syndrome. See, e.g. March 2015 Physical Medicine Rehabilitation Education Consult, VAMC Treatment Records. For this reason, the Board has recharacterized the claim as involving a claim for a disability of the upper extremities pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (Vet. App. 2009). In Clemons, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In this matter, the Veteran has not been afforded a VA examination for a disability affecting the upper extremities, to include residuals of bilateral frostbite of the hands. In May 2010, the Veteran's available VA treatment records indicated he was diagnosed with secondary Raynaud's phenomenon resulting from his frostbite injury during service. The rheumatologist noted that the Veteran had symptoms of painful discoloration in his hand, especially when exposed to cold temperatures. See May 2010 Rheumatology Report, VAMC Treatment Records. However, the Veteran's rheumatologist later questioned his own diagnosis of Raynaud's phenomenon. See August 2014 Rheumatologist Consult Report, VAMC Treatment Records. The Veteran was later diagnosed with carpel tunnel syndrome. See March 2015 Physical Medicine Rehabilitation Education Consult, VAMC Treatment Records. Additionally, the Veteran is service connected for fibromyalgia. See April 2018 Rating Decision. It is not clear from the treatment records, however, that carpel tunnel syndrome or fibromyalgia would account for all the Veteran's symptoms, including the reported painful discoloration and cold sensitivity. A VA examination in necessary to clarify which disabilities the Veteran has, and account for each of the Veteran's symptoms. Additionally, the Veteran's Certificate of Release or Discharge from active duty indicates he served in Southwest Asia from January 1991 to May of 1991. Therefore, VA should obtain an opinion on whether the Veteran's claimed disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, (Vet. App. 2018). The Board also notes that additional treatment records have been obtained since the RO's supplemental statement of the case in June 2018. 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. As noted above, the Veteran was scheduled for a VA consult in April of 2018. The results of this audiological consult are not in the Veteran's claims file. These records potentially relate to the Veteran's claimed disability, and therefore should be located and associated with the Veteran's file. In addition, the last VA hearing loss examination the Veteran received was in 2010, eleven years ago and eight years prior to his claims of worsening of his hearing and ringing in his ears. See March 2010 VA Audiologist Examination. Subsequent to the last audiological examination, the United States Court of Appeals for the Federal Circuit decided Lynch v. McDonough, 999 F.3d 1391(Fed. Cir. 2021), which clarified that the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance i.e. nearly equal and does not require the evidence to be in exact equipoise. Id. It is not clear if the 2010 Audiologist Examination used a 50 percent probability standard or an approximate balance standard. On these particular facts, an addendum examination is in order. The Board also notes that additional treatment records have been obtained since the RO's supplemental statement of the case in June 2018. The matters are REMANDED for the following action: 1. The Veterans Benefits Administration (VBA) should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records including private treatment records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file, to include any additional VA treatment records from January 2020 to date. VBA should also attempt to procure the results of the Veteran's audiologist examination for which he was scheduled in April 2018. See, e.g. April 2018 Community Care Request Note, VAMC. 2. After VA associates outstanding records with the file, it should afford the Veteran VA examinations for (i) a disability of the upper extremities, to include bilateral frostbite of the hands and (ii) bilateral hearing loss. VA should provide the examiners with the claims file. With regard to the disability of the Veteran's upper extremities, the examiner should consider these concerns, and provide a full rationale: (a.) The examiner should identify each disability the Veteran has affecting the upper extremities. To the extent possible, the VA examiner should attribute each reported symptom to a diagnosed disability. The examiner should consider the Veteran's diagnosis of carpel tunnel syndrome, fibromyalgia, as well as the Veteran's reported painful discoloration of the hands and cold sensitivity. See, e.g. May 2010 Rheumatology Report, VAMC Treatment Records. (b.) For each disability diagnosed, the examiner should opine whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the disability began in or was otherwise caused by the Veteran's service. A complete opinion will consider the Veteran's credible lay statements, including his reported frostbite injury. See January 2016 RO Hearing Testimony. (c.) For each upper extremity disability diagnosed, the examiner should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the Veteran's individual circumstances rather than the illnesses as they are understood in the general public. The examiner should opine whether the Veteran's claimed disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, (Vet. App. 2018). (d.) The examiner should also opine whether any of the Veteran's service-connected disabilities are at least as likely as not (an approximate balance of positive and negative evidence) (i) caused or (ii) aggravated any of the Veteran's upper extremity disabilities. Under Ward v. Wilkie, 31 Vet. App. 233, 239 (Vet. App. 2019), any increase or aggravation is sufficient, and a permanent worsening is not required. (e) With regard to the Veteran's hearing loss, VA should obtain an examination to determine whether it is at least as likely as not (an approximate balance of positive and negative evidence) that any diagnosed hearing loss disability began in or was otherwise caused by the Veteran's service. If the records from the Veteran's April 2018 hearing consult can be obtained, the examiner should consider those records in addition to the Veteran's credible lay statements. (f) The examiner should opine as to whether the etiology and the pathophysiology of the Veteran's hearing loss symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the Veteran's individual circumstances rather than the illnesses as they are understood in the general public. The examiner should opine whether the Veteran's claimed disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, (Vet. App. 2018). The examiner should consider the Veteran's reported participation in a study to characterize vestibular dysfunction in Gulf War Illness. See November 2016 Research Consent and Contact, VAMC Treatment Records. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.