Citation Nr: 21014330 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-45 857 DATE: March 11, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for psoriasis and the claim is reopened; to this extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a spine disability and the claim is reopened; to this extent only, the appeal is granted. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for psoriasis is remanded. Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) previously denied the Veteran’s claims of service connection for psoriasis and a spine disability in a March 2011 rating decision. The Veteran was properly notified of this decision and he did not perfect an appeal. 2. Some of the additional evidence received since the March 2011 decision denying service connection for psoriasis and a spine disability is not cumulative or redundant of evidence already of record and considered in that decision and raises a reasonable possibility of substantiating the claims for service connection. 3. The preponderance of the evidence of record is against finding that the Veteran has had a right ear hearing loss disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The October March 2011 rating decision that denied service connection for psoriasis and a spine disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 2. New and material evidence having been received, the claims for service connection for psoriasis and a spine disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 13, 2001 to December 12, 2001. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in July 2016. The Veteran testified before the undersigned Veterans Law Judge at a December 2020 hearing; a transcript of the hearing is of record. New and Material Evidence 1. New and material evidence to reopen a claim of service connection for psoriasis 2. New and material evidence to reopen a claim of service connection for a spine disability The Veteran contends that his preexisting psoriasis was aggravated by service, and that his low back disability, to include psoriatic arthritis, is secondary to psoriasis. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239 40 (1995). A decision of the AOJ becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 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 is defined as 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Evidence is new if it was not previously submitted to agency decisionmakers and material if it, by itself or in consideration with prior record evidence, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). It cannot be cumulative or redundant of record evidence at the time of the claim’s prior final denial and it must raise a reasonable possibility of substantiating the claim. Id. The credibility, but not the weight, of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening a claim is low and does not require the claimant to present new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 115-119 (2010). The AOJ initially denied entitlement to service connection for psoriasis in a September 2002 rating decision. The AOJ determined that psoriasis existed prior to service and was not aggravated by service. The Veteran did not perfect an appeal of this rating decision or submit new and material evidence within one year of that decision. Therefore, the September 2002 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.1103. In an unappealed October 2009 rating decision, the AOJ determined that new and material evidence had not been submitted to reopen the claim of service connection for psoriasis. The Veteran did not appeal this rating decision or submit new and material evidence within one year of that decision. Therefore, the October 2009 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.1103. In October 2010, the Veteran applied to reopen the claim of service connection for psoriasis, and also claimed service connection for psoriatic arthritis. In a March 2011 rating decision, the AOJ reopened the claim and determined that psoriasis existed prior to service and was not aggravated by service, and that there was no nexus between the current spine disability and service. The Veteran did not appeal this rating decision or submit new and material evidence within one year of that decision. Therefore, the March 2011 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.1103. Evidence of record at the time of the prior final March 2011 rating decision included a report of an April 2003 VA skin examination, private medical records reflecting diagnoses of psoriasis and a lumbar spine disability (mild lower lumbar facet arthrosis and L5-S1 tiny central disc protrusion), and service treatment records reflecting that psoriasis was noted on entrance examination, and that are negative for a spine disability. Additional evidence received since the prior final March 2011 decision includes duplicate copies of service treatment records, and the Veteran’s testimony at the December 2020 Board hearing that when he entered service, he only had a quarter-sized patch of psoriasis on his trunk, and within three weeks of service, it covered 90 percent of his body, and the condition had been recurrent ever since. He also contended that he has psoriatic arthritis of the spine secondary to psoriasis, and that medical providers had previously told him he would develop this condition. The Board finds that some of this evidence is both new and material, specifically the Veteran’s testimony, which is presumed credible. This evidence was not of record at the time of the prior final decision, and is both new and material. When considered with the evidence of record, this evidence triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claims. Thus, the claims are reopened. See Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection 3. Service connection for right ear hearing loss The Veteran contends that he was hit in the head during hand-to-hand combat training in service, and noticed a pop, ringing in his ears, and decreased hearing at that time, and ongoing hearing loss since then. See December 2020 Board hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current right ear hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). The results of the Veteran’s June 2016 VA audiological examination show that he does not currently have sufficient hearing loss in the right ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385. On the authorized audiological evaluation in June 2016, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 25 LEFT 25 20 15 20 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. There is no competent evidence of a current right ear hearing loss disability under 38 C.F.R. § 3.385. The Board concludes that the Veteran does not have a current right ear hearing loss disability 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 is competent to report having experienced symptoms of hearing loss since service, he is not competent to provide a diagnosis in this case or determine that he has a current hearing loss disability under 38 C.F.R. § 3.385, as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Service connection for psoriasis is remanded. The Veteran contends that his preexisting psoriasis was aggravated by service. At the December 2020 Board hearing, he testified that when he entered service, he only had a quarter-sized patch of psoriasis on his trunk, and within three weeks of service, it covered 90 percent of his body. Service treatment records reflect that on service entrance examination in October 2001, the examiner noted psoriasis of the trunk. The Veteran underwent a Medical Board in November 2001, and the examiner diagnosed extensive psoriasis, existing prior to service, and determined that it was not permanently aggravated by service. The Board cannot make a fully-informed decision on the issue of service connection for psoriasis because no VA examiner has opined whether preexisting psoriasis was aggravated by service. 2. Service connection for a spine disability is remanded. The Veteran contends that he has psoriatic arthritis of the spine that is secondary to psoriasis. The issue of secondary service connection for a spine disability is inextricably intertwined with the issue of service connection for psoriasis. If service connection is established for psoriasis on remand, a VA medical opinion is needed as to whether the current spine disability is secondary to psoriasis. 3. Service connection for left ear hearing loss is remanded. At the December 2020 Board hearing, the Veteran testified that he was hit in the left side of the head during hand-to-hand combat training in service, and noticed a pop, ringing in his ear, and decreased hearing at that time, and ongoing hearing loss since then. The Board cannot make a fully-informed decision on the issue of service connection for left ear hearing loss because no VA examiner has opined whether current left ear hearing loss is due to an alleged blow to the head during hand-to-hand combat training in service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his psoriasis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Did the Veteran’s psoriasis, which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? 2. Only if service connection is granted for psoriasis, schedule the Veteran for a VA examination for his claimed spine disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the spine disability, to include arthritis, at least as likely as not proximately due to service-connected disability? Is the spine disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability? 3. Obtain a VA medical opinion regarding the claim of service connection for left ear hearing loss. The examiner must review the claims file. An examination need only be performed if deemed necessary by the examiner. The Veteran testified that he was hit in the left side of the head during hand-to-hand combat training in service, and noticed a pop, ringing in his ear, and decreased hearing at that time, and ongoing hearing loss since then. He testified that he did not have much live fire training during his brief period of service. The examiner is asked to provide a response to the following: Is left ear hearing loss at least as likely as not related to service, including an alleged blow to the head during basic training? Is it at least as likely as not that left ear hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.