Citation Nr: 21041847 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-15 169A DATE: July 10, 2021 ORDER As new and material evidence has not been received, the claim for service connection for lumbar spine disability may not be reopened and remains denied. As new and material evidence has not been received, the claims for service connection for right and left lower extremity frostbite residuals may not be reopened and remain denied. As new and material evidence has not been received, the claim for service connection for a psychiatric disorder including posttraumatic stress disorder (PTSD) may not be reopened and remains denied. Service connection for prostate cancer is denied. Service connection for cervical spine disability is denied. Service connection for right and left shoulder disability is denied. Service connection for right and left elbow disability is denied. Service connection for right and left wrist disability is denied. Service connection for gastrointestinal disorders including chronic gastritis and/or peptic ulcer is denied. A rating greater than 30 percent for sinusitis is denied. A rating greater than 10 percent for tinnitus is denied. A compensable rating for bilateral hearing loss disability is denied. A total disability rating for compensation based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Board denied service connection for lumbar spine disability, right and left lower extremity frostbite residuals, and a psychiatric disorder in June 2014. 2. Since the final June 2014 decisions denying service connection for lumbar spine disability, right and left lower extremity frostbite residuals, and a psychiatric disorder, evidence relating to an unestablished fact necessary to substantiate any of the claims and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has not been received. 3. The Veteran's current prostate cancer was not manifest in service or within 1 year of separation and is unrelated to service. 4. The Veteran's current cervical spine disability is arthritis which was not manifest in service or within 1 year of separation and is unrelated to service. 5. The Veteran's current right and left shoulder, elbow, and wrist disability is arthritis which was not manifest in service or within 1 year of separation and is unrelated to service. 6. The Veteran's current gastrointestinal disorders are chronic gastritis and peptic ulcer disease which were not manifest in service, or, for peptic ulcer disease, within 1 year of separation, and are unrelated to service. 7. The Veteran has not had radical surgery or repeated surgeries for his sinusitis. 8. The Veteran's service connected tinnitus is rated at its maximum schedular rating of 10 percent under Diagnostic Code 6260. 9. The Veteran's right and left ear hearing loss each warrant no more than a Roman numeral I. 10. The Veteran's combined schedular service connected disability rating is 40 percent. 12. The Veteran is not precluded from all forms of substantially gainful employment due to his service connected disabilities, chronic frontal sinusitis rated 30 percent, bilateral tinnitus rated 10 percent, and bilateral hearing loss disability rated noncompensable. CONCLUSIONS OF LAW 1. The June 2014 Board decisions denying service connection for lumbar spine disability, right and left lower extremity frostbite residuals, and a psychiatric disorder are final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The criteria to reopen the claims for service connection for lumbar spine disability, right and left lower extremity frostbite residuals, and a psychiatric disorder including PTSD based on new and material evidence are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for right and left shoulder, elbow, and wrist disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for service connection for gastrointestinal disorders including chronic gastritis and/or peptic ulcer have not been met. 38 U.S.C. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for a rating greater than 30 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6512. 8. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 9. The criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 10. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1962 and had army reserve national guard service thereafter through 1974. The Board thanks him for his service. He appeals from July 2014, October 2015, and December 2016 agency of original jurisdiction (AOJ) rating decisions denying the benefits sought. His appeals were remanded in March 2018. SERVICE CONNECTION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis, peptic ulcer, and malignancy are considered to be chronic diseases under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697(1997)); see 38 C.F.R. § 3.303(b). Prior Board decisions are final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence to reopen a claim for service connection for lumbar spine disability The Board denied service connection for low back disability in June 2014. The Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The basis of the decision was that the Veteran's current lumbar spine disability was not incurred in or aggravated by service. Since that decision, new and material evidence has not been received to reopen the claim. Medical records have been submitted indicating that the Veteran currently has lumbar spine disability. These are cumulative of evidence previously considered, showing lumbar spine disability. No new and material evidence has been received indicating that the Veteran's current lumbar spine disability was manifest in service or within 1 year of separation or that it is related to service. A February 2015 letter from Dr. Quesada, opining that the Veteran's low back disability is due to service but not explaining how, is cumulative of similar evidence previously considered, including a July 2013 letter from Dr. Valentin. A November 2018 letter from the Veteran to the effect that due to strong, strenuous, consecutive workouts, he was physically affected, is cumulative of evidence previously considered, including a September 2008 statement from him that his low back disability was incurred in service. Additionally, since it is not competent evidence of current lumbar spine disability due to service, as it comes from a layperson, it is not material. As no new and material evidence has been received, the claim may not be reopened and remains denied. New and material evidence to reopen claims for service connection for right and left lower extremity frostbite residuals The Board denied service connection for right and left lower extremity frostbite residuals in June 2014. The Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The basis of the decision was that bilateral lower extremity disorders were not incurred in service. Since that decision, new and material evidence has not been received to reopen the claims. Medical records have been submitted indicating that the Veteran currently has lower extremity disorders. These are cumulative of evidence previously considered, showing lower extremity disorders. No new and material evidence has been received indicating that the Veteran has a current disorder of either lower extremity which was manifest in service or that is related to service. A February 2015 letter from Dr. Quesada, to the effect that during service, the Veteran suffered frostbite of his lower extremities and complains of itching, numbness, prickling, and loss of skin elasticity, and diagnosing frostbite of the lower extremities, is cumulative of other evidence of record including a July 2013 letter from Dr. Valentin indicating that the Veteran suffered frostbite of his feet and legs in service and that it is at least as likely as not that his feet and leg problems are service connected secondary to this. No explanation was provided for either of these opinions, and it is unclear, what, if any, records were considered in rendering them. A November 2018 letter from the Veteran to the effect that due to strong, strenuous, and extremely cold consecutive workouts, he was physically affected, is cumulative of evidence previously considered, including the July 2013 report from Dr. Valentin. Additionally, since it is not competent evidence of lower extremity disabilities due to service, as it comes from a layperson, it is not material. As no new and material evidence has been received, the claim may not be reopened and remains denied. New and material evidence to reopen a claim for service connection for a psychiatric disorder, including PTSD The Board denied service connection for a psychiatric disorder in June 2014. The Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The basis of the decision was that psychiatric disorders were not incurred in service. No psychiatric problems or disorders were shown in service and the Veteran was psychiatrically normal and denied having or having had pertinent symptomatology on service discharge examination in May 1962. The Veteran's appeal for service connection for PTSD is considered to be part of his appeal to reopen a claim for service connection for a psychiatric disorder, per Clemons v. Shinseki, 23 Vet. App. 1 (2009), and is being considered in this section. Since the June 2014 Board decision, new and material evidence has not been received to reopen the claim. Medical records have been submitted indicating that the Veteran currently has psychiatric disorders. These are cumulative of evidence previously considered, showing psychiatric disorders. No new and material evidence has been received indicating that the Veteran has a current psychiatric disorder which was manifest in service or that is related to service. A February 2015 letter from Dr. Quesada, to the effect that the Veteran has psychiatric symptoms and diagnoses which are more probable than not due to his service, and without any substantial explanation for this opinion, is cumulative of other evidence of record including a July 2013 letter from Dr. Valentin to the effect that it is at least as likely as not that he has a nervous problem that is service connected. A November 2018 letter from the Veteran to the effect that due to strong, strenuous, racist, and extremely cold consecutive workouts, he was emotionally and mentally affected, is cumulative of evidence previously considered, including the July 2013 report from Dr. Valentin and a February 2010 report he gave to a VA social worker. Additionally, since it is not competent evidence of medical causation, as it comes from a layperson, it is not material. As no new and material evidence has been received, the claim may not be reopened and remains denied. The Board notes that there are no medical records showing PTSD of record. Service connection for prostate cancer The Veteran appeals for service connection for prostate cancer, from an October 2015 rating decision based on a claim filed in March 2015. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current prostate cancer disability, first identified many years after service, in or about 2009. The preponderance of the evidence indicates that this was not manifest in service or within 1 year of separation and that it is unrelated to service. Service treatment records do not report it and the Veteran denied having or having had pertinent symptomatology and his prostate was normal on service discharge examination in May 1962, as well as on VA examination in September 1979. His current prostate cancer disability is first shown many years after service, with no competent evidence indicating that it was manifest in service or within 1 year of separation or that it is related to service. Service connection for cervical spine disability The Veteran appeals for service connection for cervical spine disability, from an October 2015 rating decision based on a claim filed in March 2015. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current cervical spine disability, which includes arthritis and was first identified many years after service, in or about 2004. The preponderance of the evidence indicates that it was not manifest in service or, for arthritis, within 1 year of separation, and that it is unrelated to service. Service treatment records do not report it and the Veteran denied having or having had pertinent symptomatology and his cervical spine was normal on service discharge examination in May 1962, as well as on VA examination in September 1979. His current cervical spine disability is first shown many years after service, with no competent evidence indicating that it was manifest in service or within 1 year of separation or that it is related to service. Service connection for right and left shoulder, elbow, and wrist disability The Veteran appeals for service connection for right and left shoulder, elbow, and wrist disability, based on claims filed in March 2015. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right and left shoulder, elbow, and wrist disabilities, which are arthritis according to a February 2015 report from Dr. Quesada. The preponderance of the evidence indicates that this was not manifest in service or within 1 year of separation, and that it is unrelated to service. Service treatment records do not show it, and the Veteran denied having or having had pertinent symptomatology and his shoulders, elbows, and wrists were normal on service discharge examination in May 1962, as well as on VA examination in September 1979. His current shoulder, elbow, and wrist arthritis was first shown many years after service, with no probative competent evidence indicating that it was manifest in service or within 1 year of separation or that it is related to service. Dr. Quesada reported in February 2015 that it is secondary to the Veteran's service performance, but he provided no rationale for this opinion and it is unclear what records, if any, he considered, and so it is not probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. Quesada's opinion is also undercut by the absence of complaints in the Veteran's service treatment records and his denials of pertinent history and complaints on service discharge examination in May 1962, and at the time of the VA examination in September 1979, and the normal findings on those examinations. Service connection for gastrointestinal disorders including chronic gastritis and/or peptic ulcer The Veteran appeals for service connection for gastrointestinal disorders based on a claim filed in March 2015. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current gastrointestinal disorders, which Dr. Quesada indicated in February 2015 are peptic ulcer disease and chronic gastritis. The preponderance of the evidence indicates that these were not manifest in service or within 1 year of separation, for peptic ulcer disease, and that they are unrelated to service. Service treatment records do not show them, and the Veteran denied having or having had pertinent symptomatology and his gastrointestinal system was normal on service discharge examination in May 1962, as well as on VA examination in September 1979. His current gastrointestinal disabilities were first shown many years after service, with no competent probative evidence indicating that they were manifest in service or within 1 year of separation or that they are related to service. The Veteran reported in September 2011 that he has been complaining of continuity of symptoms, and that 38 C.F.R. § 3.303(b) requires continuity of symptomatology, not treatment. He noted that a Veteran's testimony, together with the lay evidence of continuity of symptomatology, may be sufficient to link his in service symptoms. However, no disease, injury, or symptoms are shown in the service treatment records, and there is no reliable evidence of record of relevant in service disease, injury, or symptoms. INCREASED RATINGS Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). A rating greater than 30 percent for sinusitis The Veteran appeals for a rating greater than 30 percent for his service connected sinusitis. The claim was filed in September 2016, and the disability is assigned Diagnostic Code 6512 and is rated under 38 C.F.R. § 4.97's General Rating Formula for Sinusitis. It provides for a 30 percent rating when there are 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4-6 weeks) antibiotic treatment, or; more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. It provides for a 50 percent rating following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Based on the evidence of record, the Board concludes that a rating in excess of 30 percent is not warranted for the Veteran's service connected sinusitis. The preponderance of the evidence including the November 2016 VA examination report and VA medical records indicates that the Veteran has not had radical surgery or repeated surgeries. The November 2016 VA examination report indicates that the Veteran has had no sinus surgeries. It and the VA medical records indicate that the Veteran has not had near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. They also contain no reports of osteomyelitis. A rating in excess of 10 percent for tinnitus The Veteran appeals for a rating greater than 10 percent for tinnitus. It is rated under Diagnostic Code 6260, which is for tinnitus, for the entirety of the rating period since September 2008. Such code provides for a maximum 10 percent rating for tinnitus, whether it is unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Accordingly, the Board concludes that a rating higher than the Veteran's current 10 percent for tinnitus assigned under Diagnostic Code 6260 is not warranted. A compensable rating for bilateral hearing loss disability The Veteran appeals for a compensable rating for his service connected bilateral hearing loss disability, which is rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100. The claim was filed in September 2008. In Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992), the Court noted that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. The test procedures required to measure hearing loss disability are set forth at 38 C.F.R. § 4.85 and are, therefore, uniform in evaluating hearing loss disability. Thus, an examination that meets the requirements of 38 C.F.R. § 4.85 and the assignment of the disability evaluation through the mechanical application of the rating schedule, as recognized by the Court in Lendenmann, would meet the statutory and regulatory requirements that the rating be based, as far as practicable, upon the average impairment of earning capacity. See 38 U.S.C. § 1155. On VA examination in October 2013, the Veteran's audiometry was not valid for rating purposes. The Veteran was very uncooperative and presented exaggerated responses to puretone threshold testing, and his speech recognition ability in each ear was 100 percent. Accordingly, this report cannot serve as a basis for a compensable rating for his service connected bilateral hearing loss disability. On VA examination in November 2016, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 15 30 19 LEFT 15 15 20 35 21 Speech recognition scores, using the Maryland CNC test, were 100 percent in each ear. These findings, using 38 C.F.R. § 4.85, Table VI, yield a Roman numeral I for each ear. These numeric designations yield a noncompensable rating using 38 C.F.R. § 4.85, Table VII. A pattern of exceptional hearing loss is not shown; thus, consideration of 38 C.F.R. § 4.86 is not warranted. Given the above, a compensable rating is not warranted for the Veteran's bilateral hearing loss disability under the rating schedule. The audiometry described accords with no more than a noncompensable rating under Diagnostic Code 6100. A TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect only for chronic frontal sinusitis rated 30 percent, bilateral tinnitus rated 10 percent, and bilateral hearing loss disability rated noncompensable; making the Veteran's combined rating only 40 percent. Since he does not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) are not met. However, a TDIU evaluation can still be awarded due to the service connected disabilities if it is established by the evidence of record that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. If there is evidence of this, the case is to be sent to the Director of Compensation and Pension for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). In this case, there is no basis to refer the case to the Director of VA's Compensation and Pension Service. The record as to the Veteran's disablement from service connected disabilities has been carefully reviewed. His DD Form 214 indicates that he has 6 years of education, and his VA Form 21-8940 indicates that he has work experience as a laborer and that he receives Social Security Administration benefits due to his age. A February 2015 letter from Dr. Quesada, talking about multiple disabilities, not mentioning sinusitis, and to the effect that the Veteran's service connected disabilities significantly affect his ability to perform in a competitive work environment, has been considered, but it does not indicate that service connected disabilities prevent the Veteran from securing or maintaining all forms of substantially gainful employment. His current schedular ratings already reflect that employment is affected. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). November 2016 VA examination reports specifically concerning only the Veteran's sinusitis, tinnitus, and hearing loss disabilities indicate that they have no impact on his ability to work. The Veteran had perhaps indicated in July 2015 that these disabilities alone prevented him from securing or following any substantially gainful occupation, but this is unsupported. And whether or not these disabilities, in combination with other disabilities for which the Veteran had sought service connection, prevent him from securing and maintaining all forms of substantially gainful employment, as he alleged in July 2015, is inconsequential, as service connection is not in effect for those other disabilities. A TDIU can be awarded only for service connected disabilities. 38 C.F.R. § 4.16. Because the preponderance of the evidence shows that the Veteran's service connected disabilities do not render him unemployable, there is no basis to support an extraschedular TDIU rating, and so referral to the Director of VA's Compensation Service for extraschedular consideration of a TDIU is not warranted. The Veteran argued in April 2016 that all of VA's decisions on his claims were void ab initio because no VA examinations were obtained and because certificates from doctors were not considered. However, he has provided no authority, and we cannot find any, which indicates that this is a valid basis for treating decisions as void ab initio. And certificates from doctors were considered; and no unprovided VA examinations are necessary for the claims. Under 38 C.F.R. § 3.159, a VA examination is not necessary when new and material evidence has not been received. VA examinations also are not necessary under 38 C.F.R. § 3.159 where, as here, for the service connection claims being decided de novo, the evidence does not establish that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. § 3.309 manifesting during its applicable presumptive period. Current VA examinations were conducted for the sinusitis, tinnitus, and bilateral hearing loss disability claims in November 2016. The preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor concerning any of them. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED