Citation Nr: 22015463 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-25 201 DATE: March 17, 2022 ORDER New and material evidence has not been received; the claim for entitlement to service connection for bilateral hearing loss is not reopened. Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for right shoulder disability is denied. Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for right arm disability, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for left arm disability, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for right hand disability, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for left hand disability, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for radiculopathy, right upper extremity, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for radiculopathy, left upper extremity, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. A June 1990 rating decision denied entitlement to service connection for bilateral hearing loss; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the June 1990 rating decision. 2. The evidence received since the June 1990 rating decision does not relate to any unestablished facts necessary to substantiate the claim for entitlement to service connection for bilateral hearing loss. 3. The evidence is persuasively against a finding that the Veteran's cervical spine disability is related to service or that arthritis manifested to a compensable degree within one year of separation. 4. The evidence is persuasively against a finding that the Veteran's right shoulder disability is related to service. 5. The evidence is persuasively against a finding that the Veteran's left shoulder disability is related to service. 6. The evidence is persuasively against a finding that the Veteran's right arm disability is related to service or a service-connected disability. 7. The evidence is persuasively against a finding that the Veteran's left arm disability is related to service or a service-connected disability. 8. The evidence is persuasively against a finding that the Veteran's right-hand disability is related to service or a service-connected disability. 9. The evidence is persuasively against a finding that the Veteran's left-hand disability is related to service or a service-connected disability. 10. The evidence is persuasively against a finding that the Veteran's radiculopathy, right upper extremity, is related to service or a service-connected disability. 11. The evidence is persuasively against a finding that the Veteran's radiculopathy, left upper extremity, is related to service or a service-connected disability 12. The evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during service. 13. The Veteran does not have a current diagnosis of an acquired psychiatric disability at any time proximate to the claim. CONCLUSIONS OF LAW 1. The June 1990 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence has not been received; the claim for entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The criteria for entitlement to service connection for cervical spine disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for right shoulder disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for left shoulder disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for right arm disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for entitlement to service connection for left arm disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for entitlement to service connection for right hand disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for entitlement to service connection for left hand disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. The criteria for entitlement to service connection for radiculopathy, upper right extremity, have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 11. The criteria for entitlement to service connection for radiculopathy, upper left extremity, have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 12. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 13. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Bilateral hearing loss In this case, the RO denied service connection for bilateral hearing loss in a June 1990 rating decision because there was no evidence of a present disability related to service. Thus, service connection for bilateral hearing loss could not be established. The Veteran was notified of the decision in a letter dated July 1990. The Veteran did not file a notice of disagreement with the June 1990 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the June 1990 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final June 1990 rating decision includes testimony before the undersigned Veterans Law Judge, a December 2016 VA examination, and an October 2014 private audiological examination. While this evidence is new, as it was not of record at the time of the final June 1990 rating decision, it is not material. It is not material, most importantly, because the Veteran did not provide any evidence of audiometric testing showing that he has a bilateral hearing loss disability for VA purposes. A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Veteran was provided a VA examination to determine the etiology of his bilateral hearing loss in December 2016. The audiological examination showed no hearing loss for VA purposes and the VA examiner provided a negative nexus opinion. The October 2014 private audiogram did not show hearing loss in either ear for VA purposes. No evidence has been received since the final June 1990 rating decision that addresses a previously unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, notably a diagnosis of hearing loss for VA purposes and a medical nexus opinion linking the diagnosis to his service. Thus, the Board must conclude that new and material evidence to reopen the service-connection claim for bilateral hearing loss has not been received, and the June 1990 rating decision remains final. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1100. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Cervical spine 2. Bilateral shoulders 3. Bilateral arms 4. Bilateral hands 5. Bilateral upper extremity radiculopathy The Veteran contends that his cervical spine disability, bilateral shoulder disability, bilateral arm disability, bilateral hand disability, and bilateral upper extremity radiculopathy is related to his service. Specifically, the Veteran testified he worked in a mobile task unit in service where he was rolling cables into a spool, and he felt a pop in his neck and immediately had a sensation that went down his arms to his fingers. He stated he was seen in April 1988 but did not seek treatment thereafter. The Veteran stated he toughed it out taking ibuprofen and asprin. However, he stated the pain in his right arm, shoulder and tingling to his fingers has continued ever since. The Veteran has not sought any medical attention for these conditions since service. The Veteran also asserted he never claimed service connection for the left side of his body. However, the Veteran's September 2016 claim indicates bilateral hands, bilateral arms, bilateral shoulders, and bilateral upper extremity radiculopathy. The evidence of record shows that the Veteran was diagnosed with bilateral shoulder strains, arthritis of the cervical spine, and numbness and tingling of the bilateral upper extremities at the February 2017 VA examinations. Therefore, there is evidence of current disabilities. As to an in-service event, injury or disease, the Veteran's service treatment records reveal treatment for muscle spasms of the right shoulder and neck. Accordingly, there is also evidence of an in-service injury and the issue remaining for consideration as to direct service connection is whether the Veteran's current disabilities are etiologically related to the in-service injury. At the February 2017 VA neck, arms, and shoulders examinations, the Veteran denied a specific injury to the neck or either shoulder or arm in service. The Veteran stated since service he has experienced pain in the neck, shoulders, and arms. The Veteran reported two motor vehicle accidents after separation, but denied any trauma to the neck, arms, or shoulders. The Veteran has gone to a chiropractor for massages; but there has never been any formal evaluation or treatment for his neck, shoulders, or arms since the service. The examiner noted the Veteran's upper extremity symptoms (numbness and tingling). The examiner stated the Veteran responded positively to Phalen's testing, reverse Phalen's testing and Tinel's sign. The examiner stated the Veteran also indicated the symptoms are reproduced with ulnar compression of the right elbow. These findings suggest the Veteran's upper extremity symptoms likely are due to a peripheral nerve etiology, for which the Veteran is not service connected. The February 2017 VA examiner stated the Veteran's bilateral shoulder and bilateral arms, and neck disability are less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained she reviewed the Veteran's service treatment records. The service treatment records describe an acute muscle spasm of the right shoulder and neck on April 8, 1988. Review of service treatment records indicate that the rest of the service treatment records are absent for shoulder or neck symptoms or pathology. The separation physical is absent for report of shoulder or neck symptoms or pathology. The examiner was not able to find any record of left shoulder symptoms or pathology in the service treatment records. Post-service, the record is absent for shoulder or neck symptoms or pathology. The objective record indicates that the shoulder and neck conditions in service were acute and resolved. There is a lack of objective evidence to establish chronicity. The examiner added that it is more likely the current neck condition is due to changes associated with the normal aging process. With respect to a nexus between the neck disability, bilateral shoulder disability, bilateral arm disability, bilateral hand disability, and bilateral upper extremity radiculopathy and the in-service event, the only competent medical opinion of record is the February 2017 VA opinion, which weighs against the Veteran's claims. The Board finds that the February 2017 VA examiner's opinions are due significant probative value. The VA examiner provided the opinions based on an accurate understanding of the Veteran's medical history, on the examiner's own knowledge and expertise, and on an examination of the Veteran. Furthermore, the VA examiner provided a rationale that explains the conclusions and gives insight into the medical aspects of the Veteran's current neck, bilateral shoulder, and bilateral arm, bilateral hand, and bilateral upper extremity radiculopathy disabilities. See Nieves- Rodriguez, 22 Vet. App. at 295. The only evidence indicating an association between the current disabilities and active duty are the Veteran's own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of the Veteran's neck and shoulder disabilities, as well as the attendant upper extremity symptoms, is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran's current neck disability, bilateral shoulder disability, bilateral arm disability, bilateral hand disability, and bilateral upper extremity radiculopathy had their onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of these disabilities. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds that the Veteran's more recently reported history of continued symptoms since service is inconsistent with the other medical evidence of record. While he asserts that his neck, shoulder, and various bilateral upper extremity symptoms were continuous since service, in the more contemporaneous medical history he gave at the service separation examination, he denied any relevant history or complaints of symptoms of swollen or painful joints, painful shoulder or elbow, neuritis, and paralysis. Moreover, during an October 1993 civilian Report of Medical History he denied any relevant history or complaints of symptoms of swollen or painful joints, painful shoulder or elbow, neuritis, and paralysis. The Veteran's in-service and shortly after service history of symptoms is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation. The Board has also considered whether the Veteran is entitled to service connection for arthritis of the cervical spine as a "chronic disease." See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of "chronic" diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with degenerative disc disease and degenerative arthritis of the cervical spine in 2017, 27 years after his separation from service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with degenerative disc disease or degenerative arthritis of the cervical spine, or any other "chronic" disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 2017 without complaints and/or treatments for degenerative disc disease and degenerative arthritis of the cervical spine is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). To the extent the Veteran asserts his bilateral upper extremity radiculopathy, bilateral hand, and bilateral arm disabilities are secondary to his neck and/or shoulder disabilities, service connection on a secondary basis is not available as the underlying neck/shoulder disabilities are not service connected. 38 C.F.R. § 3.310 (a). Rather, the February 2017 VA examiner opined these symptoms were due to a peripheral nerve condition, for which the Veteran is not service connected. In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran's current neck disability, bilateral shoulder disability, bilateral arm disability, bilateral hand disability, and bilateral upper extremity radiculopathy and his service. In light of the above, the weight of the evidence is against the claims and the benefit-of-the-doubt doctrine is not for application. The claims therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 6. Tinnitus The Veteran seeks entitlement to service connection for tinnitus. He contends that he first experienced tinnitus after being exposed to high frequency generators numerous occasions during service when he was attached to a mobile tactical unit. He further contends that the disability has continued through the present. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307 (a) (3), 3.309 (a). With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's assertions that he currently has tinnitus constitute competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns his credibility on the matter and concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran's DD Form 214 shows that Veteran worked as an aerospace ground equipment mechanic during service. The Veteran asserts that he was exposed to hazardous noise from high frequency generators. As such, his assertions are consistent with the circumstances of his service. The Veteran's service treatment records are absent for evidence of any complaints of, or treatment for, tinnitus during service. However, the Veteran has stated that his tinnitus began during his service, and the Board finds that nothing in the record impugns his credibility on that matter. Accordingly, despite the absence of contemporaneous records showing in-service complaints of tinnitus, the Board finds that the Veteran's tinnitus had its onset during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence). The Board reiterates that the Veteran is considered competent to report the onset and continuous presence of tinnitus. See Charles, 16 Vet. App. 370. In addition, the Veteran has been consistent in his reports of experiencing tinnitus since service. Given the consistency of the Veteran's reports of tinnitus since service, the Board finds that his statements regarding chronic symptoms of tinnitus since service are credible. Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303 (b), 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, as the Board must resolve doubt in the Veteran's favor, the claim for entitlement to service connection for tinnitus must be granted. 38 U.S.C. § 5107 (b). 7. Acquired psychiatric disability The Veteran contends that he currently experiences an acquired psychiatric disability due to his now service-connected tinnitus. The Veteran testified that his wife has noticed he suffers from anxiety, being stressed out, and can be a little short at times. The Veteran denied any treatment for his claimed anxiety. However, the evidence shows that the Veteran has not been diagnosed with any acquired psychiatric disability at any point since his claim was filed. As such, the evidence indicates that a service connection finding is unwarranted. The evidence does not satisfy the first Shedden element i.e., the evidence does not indicate the existence of a present disability. A review of the service treatment records reveals no complaints or treatment for anxiety or mental health issues. Clinical examination was normal on entrance and separation. The Veteran has provided no evidence he has been diagnosed with an acquired psychiatric disability at any time. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability; however, etiology and diagnosis of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran and his wife are laypersons without appropriate medical training and expertise, and thus, are not competent to diagnose the presence of an acquired psychiatric disability. They are competent to describe symptomology but not to make a diagnosis. The Veteran's and his wife's opinions as to the diagnosis of an acquired psychiatric disorder are without probative value. To establish a right to compensation for a present disability, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a current psychiatric disability at any time since the claim has been filed, and the claim must be denied on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate 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.