Citation Nr: 21075449 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-44 672 DATE: December 20, 2021 ISSUES 1. Whether new material evidence has been submitted to reopen the claim for service connection for a left hand disability. 2. Entitlement to service connection for a left hand disability. 3. Entitlement to service connection for bilateral hearing loss (BHL). 4. Entitlement to service connection for tinnitus. ORDER New material evidence has been submitted to reopen the claim for service connection for a left hand disability; and to that limited extent the claim is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for BHL is remanded. FINDINGS OF FACT 1. Service connection for left hand pain was denied in a May 2009 rating decision that was not appealed. 2. Evidence received since the May 2009 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 3. The Veteran's current tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for a left hand disability are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to September 1979. This case comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in July 2021 during a videoconference hearing; a copy of the transcript is of record. In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board has reviewed all of the evidence in the Veteran's claims file. 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 Veteran 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 the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Claim to Reopen Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Given the previous unappealed denial of the claim for service connection for a left hand disability on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for left hand pain was denied in a May 2009 rating decision based on a determination that there was no left hand disability. This decision was not appealed nor was new and material evidence submitted within one year, accordingly, the determination was final. 38 C.F.R. §§ 3.156(b), 20.1103 (2017). The evidence submitted in pertinent part since this decision includes medical records that show diagnosis of left hand carpal tunnel syndrome. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for a left hand disability is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Service Connection Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). The disease must have manifested to a degree of 10 percent or more within one year of separation from service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). VA is required to give due consideration to all pertinent competent medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Tinnitus VA examination shows a diagnosis of tinnitus. Accordingly, Hickson element (1) is met. Turning to the second prong of Hickson, an in-service incurrence of a disease or injury, the Veteran's DD Form 214 shows that he was an electrical/mechanical equipment repairman. Service treatment records are also replete for complaints of ear pain, ache, inflammation, and that the Veteran reported working in an engine room with no ear plugs. Accordingly, Hickson element (2) is met. The Veteran was afforded a VA examination in August 2014 in which he reported longstanding tinnitus. The examiner provided a negative etiological opinion based on the fact that the Veteran had normal hearing on his discharge audiogram and no significant shift in hearing was noted in service records. However, the Board notes that regulations do not preclude service connection for a current disability which first met VA's definition of disability after service. 38 C.F.R. § 3.385 (2017); Ledford v. Derwinski, 3 Vet. App. 87 (1992). Moreover, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis, 1 Vet. App. 66; the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson, 2 Vet. App. 614. Accordingly, the Board does not afford this opinion probative value. The Veteran testified before the undersigned that he had tinnitus in service but did not specifically report it when he was complaining about ear pain, ache, and inflammation. The Veteran also testified that his tinnitus continued from service to the present day. The Board finds the Veteran competent and credible in reporting his onset of tinnitus and continuation of symptoms since service. Tinnitus is a chronic disease listed under 38 C.F.R. § 3.309 (a) (2017); therefore, the provisions of 38 C.F.R. § 3.303 (b) (2016) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to inter-current causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Thus, with respect to Hickson element (3), recognizing that this is a chronic disease as discussed above, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. REASONS FOR REMAND The Board finds that additional evidentiary development is required before adjudication of the issues regarding service connection for BHL and a left hand disability. In regards to the bilateral hearing loss claim, service treatment records show complaints of hearing loss in February 1977. The Veteran was afforded a VA examination in August 2014 in which a hearing loss disability per VA regulations was not shown. The examiner provided a negative etiological opinion based on the finding that there was normal hearing on discharge examination and no significant shift in hearing noted in service records. However, as noted above, regulations do not preclude service connection for current hearing loss which first met VA's definition of disability after service. 38 C.F.R. § 3.385 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford, 3 Vet. App. 87 (lack of documented hearing loss while in service is not fatal to a claim for service connection.). Moreover, the Veteran testified before the undersigned that his hearing loss had increased in severity since his last examination. As such, the Board finds that the Veteran should be afforded a VA examination on remand. In regards to the claim for a left hand disability, the Veteran contends that service connection is warranted for this disability as it is related to a documented incident in his service treatment records in April 1977 in which a hatch fell on his left hand. The Veteran was afforded a VA examination in August 2014 in which the examiner stated that in April 1977 he injured his hand when a hatch fell on it; he was diagnosed with a laceration and bruising; imaging was negative. The examiner stated that upper extremities were noted as normal on the Veteran's separation examination. The examiner stated that in 2008, nearly 30 years later, the Veteran reported pain in his left palm at the site of the prior injury, but examination and imaging were normal. The examiner stated that symptoms could be related to carpal tunnel syndrome associated with employment as a machinist. (The Board notes that carpal tunnel syndrome was not diagnosed in this examination report.) The examiner stated that current imaging was negative with intact range of motion. The examiner opined that the Veteran's left hand condition was less likely than not (50 percent or less probability) incurred in or caused by complaints of the hatch falling on the left hand in service. The Board notes that private treatment record show a diagnosis of left carpal tunnel syndrome in January 2016. In this case, the Board finds that the Veteran should be afforded a VA examination on remand to address any left hand disability diagnosed during the pendency of this appeal, to include left carpal tunnel syndrome and left hand pain. To this point, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left hand disability. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. After a complete review of the records, the examiner should address the following: i.) Diagnose any current left hand disabilities. If left hand carpal tunnel syndrome (CTS) is not diagnosed, this finding must be addressed in light of the aforenoted private treatment record diagnosing CTS. ii.) Is it as likely as not (50 percent or greater probability) that any diagnosed left hand disability or the documented left hand pain alone manifested in service, or within the first-post service year, or is otherwise etiologically related to service? iii.) The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral hearing loss. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. After a complete review of the records, the examiner should address whether it is at least as likely as not (50 percent or better probability) that any diagnosed BHL (per VA regulations) is related to his period of active duty service; to include in-service acoustic trauma. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for a hearing loss disability where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, supra. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.