Citation Nr: 21077136 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-15 957A DATE: December 28, 2021 ORDER New and material evidence has been received and the claim for service connection for peripheral neuropathy of the right lower extremity is reopened. New and material evidence has been received and the claim for service connection for peripheral neuropathy of the left lower extremity is reopened. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to service-connected diabetes mellitus, is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to an effective date earlier than May 21, 2016, for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. FINDINGS OF FACT 1. Evidence received since the March 2017 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for peripheral neuropathy of the right lower extremity. 2. Evidence received since the March 2017 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for peripheral neuropathy of the left lower extremity. 3. Resolving reasonable doubt in the Veteran's favor, peripheral neuropathy of the bilateral lower extremities is secondary to his service-connected diabetes mellitus. 4. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss is at least as likely as not related to his in-service noise exposure. 5. The Veteran's claim seeking an earlier effective date for the award of service connection for PTSD is a freestanding claim. CONCLUSIONS OF LAW 1. Since the March 2017 rating decision, new and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the right lower extremity; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Since the March 2017 rating decision, new and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the left lower extremity; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 5. The Veteran's claim for an earlier effective date for the award of service connection for PTSD is an impermissible freestanding claim and is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1969 to January 1972, to include service in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal of November 2016, March 2017, and August 2018 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The record was held open and additional evidence was submitted. The Board notes that in a February 2021 supplemental brief presentation from the Veteran's representative, it was argued that the VA made a clear and unmistakable error (CUE) in a March 28, 1993 rating decision that denied service connection for a nervous disorder based on the same contentions used for the subsequent award of PTSD in a March 2017 rating decision. The Board finds that a request for revision of the March 1993 rating decision on the basis of CUE has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b). New and Material Evidence In general, Board decisions and rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "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 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. See 38 C.F.R. § 3.156(a). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). 1. The application to reopen the claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities The Veteran's service connection claims for peripheral neuropathy of the right and left lower extremities was denied in March 2017 rating decision for a lack of current diagnoses. Since the March 2017 denial, VA and private treatment records associated with the claims file shows diagnoses of peripheral neuropathy of the bilateral lower extremities. As the prior claims were denied based on a lack of current diagnoses, the evidence is new and material, and the claims are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. Any increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disorder will also be service-connected. 38 C.F.R. § 3.310. 2. Service connection for peripheral neuropathy of the bilateral lower extremities The Veteran is seeking service connection for peripheral neuropathy of the bilateral lower extremities as secondary to his service-connected diabetes mellitus. The Veteran has a current diagnosis of peripheral neuropathy of the bilateral lower extremities. A December 2020 report was received from the Veteran's wife, a private physician. The physician provided a detailed medical history of the Veteran to include pertinent testing. Based on a review of the medical evidence and physical examination, the physician opined that it was more than 50 percent likely that the Veteran's bilateral peripheral neuropathy was caused by his diabetes mellitus. The Board finds that the above evidence is sufficient, under an equipoise standard, to show that the Veteran's symptoms of peripheral neuropathy of the bilateral lower extremities are at least as likely as not proximately due to or a result of his service-connected diabetes mellitus. Because medical professionals are presumed to have appropriate medical training and experience, the Board accepts the opinion as competent and credible. Thus, the Board finds that service connection for peripheral neuropathy of the bilateral lower extremities on a secondary basis to diabetes mellitus is warranted. 3. Service connection for left ear hearing loss The Veteran contends that his left ear hearing loss was caused by exposure to loud noises during his military service. He reports that he was routinely exposed to acoustic trauma from helicopters and artillery noise. Significantly, right ear hearing loss and tinnitus due to noise exposure have already been service connected. For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The medical evidence of record shows that the Veteran has current left ear hearing loss for VA compensation purposes. See October 2016 and June 2020 VA examination reports. However, in terms of the Veteran's left ear hearing loss, the December 2016 VA examiner opined that the Veteran's right hearing loss is not related to his active service because the Veteran's service treatment records do not reflect any threshold shift in the Veteran's left ear. Given the fact that the December 2016 VA examiner has already made a finding that the Veteran's in service noise exposure relates to his right ear hearing loss, and the Board notes that but for the lack of threshold shifts the examiner would have found a positive nexus for the Veteran's left ear hearing loss, the Board consequently finds the VA examiner's rationale for a lack of service connection for the Veteran's left ear hearing loss to be inadequate. In light of the conceded in-service noise exposure and grant of service connection for right ear hearing loss based on in-service noise exposure, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current left ear hearing loss is related to his military service. The benefit of the doubt will be awarded in the Veteran's favor. Thus, the claim for service connection for left ear hearing loss is granted. Earlier Effective Date 4. Entitlement to an effective date earlier than May 21, 2016, for the grant of service connection for PTSD In a March 2017 rating decision, the RO granted service connection for PTSD, effective May 21, 2016. The Veteran did not appeal the March 2017 rating decision grant of an effective date of May 21, 2016. As such, that determination is final. 38 U.S.C. § 7105. The current claim arises from a May 2018 request from the Veteran for entitlement to an effective date earlier than May 21, 2016 for the award of service connection for PTSD. The method for overcoming the finality of a decision is a request for revision based on clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). Otherwise, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). As the March 2017 rating decision is final, the Veteran's May 2018 claim for an effective date earlier than May 21, 2016, for the grant of service connection for PTSD is a freestanding claim. Id. As it is freestanding, the claim must be dismissed. As noted above, the Veteran's request for revision of the March 1993 rating decision based on CUE has been referred to the RO for adjudication. Because these allegations of CUE have not been adjudicated by the RO, it is improper for the Board to consider them at this time. As such, the Veteran's freestanding claim for an earlier effective date for the grant of service connection for PTSD must be dismissed. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.