Citation Nr: 1641803 Decision Date: 10/28/16 Archive Date: 11/08/16 DOCKET NO. 16-00 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, and if so, whether service connection is warranted. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a heart disorder. 6. Entitlement to service connection for unspecified tendonitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1953 to April 1954, and on active duty for training (ACDUTRA) from June 1966 to August 1966. The Veteran had other periods of unverified ACDUTRA from June 1955 through September 1975. This case comes before the Board of Veterans' Appeals (the Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that in the May 2014 rating decision, the RO treated the claim for a bilateral foot disability as a petition to reopen, which usually requires the submission of new and material evidence. Evidence submitted since the last prior denial in a September 1954 rating decision included service treatment records with an Entry onto Active Duty examination report not previously of record. Pursuant to 38 C.F.R. § 3.156 (c)(1) (2015), if after VA issues a decision on a claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Id. Thus, new and material evidence pursuant to 38 C.F.R. § 3.156 (a) is not required for reconsideration, and the Board may adjudicate the Veteran's claim for service connection for a bilateral foot disability as an original claim. 38 C.F.R. § 3.156 (c)(1) (2015). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Thus, any future consideration of this case should take into account the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a bilateral foot disorder, a heart disorder, hypertension, and tendonitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The March 1968 rating decision that denied the Veteran's claim of entitlement to service connection for diabetes mellitus was not appealed, nor was new and material evidence received during the appeal period. 2. The evidence received since the March 1968 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. 3. Competent and credible evidence indicates the Veteran experienced diabetes mellitus during and since active service. 4. The Veteran's tinnitus had its onset and was shown in service and there have been subsequent manifestations of tinnitus during the appeal period. CONCLUSIONS OF LAW 1. The March 1968 rating decision that denied the Veteran's claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C.A. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1967). 2. New and material evidence has been received; thus, the claim of entitlement to service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for establishing service connection for diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 4. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The appeals of whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, and entitlement to service connection for diabetes mellitus and tinnitus have been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of these issues, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. New and Material Evidence In January 1967, the Veteran filed a service connection claim for diabetes mellitus, which was denied in a March 1967 rating decision. The claim was denied on the grounds that diabetes mellitus was not confirmed by VA examination, and that even if diabetes mellitus did exist, it did not have its inception during the Veteran's short period of active duty for training. In November 1967, the Veteran submitted a letter from his treating physician Dr. S. P. indicating that the Veteran had a diagnosis of diabetes mellitus. A December 1967 rating decision confirmed the denial, stating that the medical evidence warranted no change in the outcome. The Veteran submitted a letter from another physician, Dr. P. H. in February 1968, which noted that the Veteran did not have signs or symptoms of diabetes mellitus prior to summer 1966, and that the Veteran had been treated for the condition since April 1967. A March 1968 rating decision confirmed the denial, noting that Dr. P. H.'s letter indicated that diabetes mellitus was first shown in 1967 and that the condition could not be attributed to the Veteran's ACDUTRA in 1966. The Veteran did not file a Notice of Disagreement (NOD) or submit new and material evidence within the appeal period. He also did not assert there was clear and unmistakable error and the decision became final. 38 U.S.C.A. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1967). Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2015). In August 2013, the Veteran filed a petition to reopen his service connection claim for diabetes mellitus. In a May 2014 rating decision, the AOJ denied the Veteran's petition on the grounds that the Veteran did not submit any evidence showing a relationship between the diabetes mellitus and service. The Veteran perfected a timely appeal. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (holding that the statutes make clear that the Board has jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will proceed to adjudicate the new and material issue. New evidence is defined as existing evidence not previously submitted to VA, and 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) (2015). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. A new theory of causation for the same disease or injury that was the subject of a previously denied claim is not a new claim and is instead a claim to reopen. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008). Therefore, new and material evidence is still required to reopen in such instances. See Roebuck v. Nicholson, 20 Vet. App. 307 (2007). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the March 1968 rating decision included service treatment records, a November 1967 letter from Dr. S. P. indicating that the Veteran had a diagnosis of diabetes mellitus, and a February 1968 letter from Dr. P. H. stating that the Veteran had no signs or symptoms of diabetes mellitus prior to summer 1966. The claim was denied on the grounds that the Army found the Veteran's diabetes mellitus was first shown in 1967 and could not be attributed to the Veteran's period of active duty for training in 1966. Since the March 1968 rating decision, the Veteran provided written statements asserting that he was diagnosed with diabetes mellitus during a period of ACDUTRA, as well as service treatment records from subsequent periods of service showing continued treatment for diabetes mellitus. This evidence received since March 1968 is new, as it was received by VA after the issuance of the March 1968 rating decision and could not have been considered by prior decision makers. Moreover, it is material, as it addresses elements found lacking in the prior rating decision, specifically as to the Veteran's continuing treatment for diabetes mellitus. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for diabetes mellitus is warranted. 38 U.S.C.A. §5108 (West 2014); 38 C.F.R. § 3.156 (2015). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b) (2015). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d) (2015). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Because diabetes mellitus and tinnitus are defined as a chronic diseases in 38 C.F.R. § 3.309 (a) (2015), the provisions of 38 C.F.R. § 3.303 (b) (2014) for chronic disabilities apply, and a claim for these disabilities may be established by evidence of a continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d at 1338-1339; Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b) (2015). Diabetes Mellitus VA and private treatment records show the Veteran has a current diagnosis of diabetes mellitus. Accordingly the first Hickson element is met. Moreover, the Veteran's service treatment records for his period of ACDUTRA service from June 1966 to August 1966 note treatment for and a diagnosis of diabetes mellitus. On July 15, 1966, the Veteran was treated for dizziness and a sensation of heat all over his body. A July 19, 1966 note indicated probable diabetes mellitus. An August 9, 1966 note from the William Beaumont General Hospital (WBGH) Endocrine Clinic noted a diagnosis of diabetes mellitus. The August 16, 1966 Report of Medical Examination for Separation showed that results of urinalysis with regard to sugar was negative and there was no notation of any defects on that report. A March 1967 VA examination report noted a history of diabetes mellitus. The examiner noted that the claims file shows that 2hile in service at Fort Bliss, Texas, the Veteran was found to have diabetes mellitus fol1wing the onset of various symptoms, the initial symptoms were those of paresthesias and dizziness. It was noted that evaluation subsequently demonstrated apparent diabetes mellitus and he was placed on diet only. Although that March 1967 VA examination noted that the Veteran's diabetes mellitus could not be confirmed, the November 1967 letter from Dr. S. P. indicated the Veteran had a definite diagnosis of diabetes. Moreover, medical evidence shows treatment for diabetes mellitus following the Veteran's ACDUTRA service in 1966. See February 1968 letter from Dr. P. H. indicating the Veteran was on a strict dietary regime, and August 1975 note indicating a checkup for diabetes mellitus. VA and private records show continued treatment for diabetes mellitus. The Board has reviewed the evidence of record and finds that, resolving any doubt in the favor of the Veteran, that the medical evidence noted above indicates the Veteran's diabetes mellitus was diagnosed during a period of ACDUTRA service, and that he has received treatment for the condition since that time. In accordance with the Court's holding in Walker, service connection is therefore warranted for diabetes mellitus. Tinnitus VA treatment records show the Veteran reports experiencing tinnitus, and reported the onset of tinnitus in the mid-1960s. See, e.g., December 2004, September 2010, December 2013, and February 2014 VA medical records. Furthermore, the Veteran's service treatment records show reports of and treatment for tinnitus on August 6, 1969, August 19, 1969, and August 12, 1971. Personnel records indicate that the Veteran was performing ACDUTRA service from August 1, 1969 to August 31, 1969, and from June 5, 1971 to September 7, 1971. See September 1969 Report of ACDUTRA and October 1971Statement. Given that the record shows the Veteran had a diagnosis of tinnitus during service and subsequent manifestations of tinnitus during the appeal period, entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for tinnitus is granted. REMAND The Veteran contends that he has a bilateral foot disorder that was aggravated during service. He also asserts that service connection is warranted for a heart disability, as due to either service or service-connected diabetes mellitus. There appear to be outstanding private treatment records. A November 2013 statement from the Veteran's friend M. C. indicated the Veteran received care at Vidant Medical Center. Records from this facility have not been requested or associated with the claims file. Though they appear related to the Veteran's diabetes mellitus, for which service connection has been granted above, they may also contain relevant information related to his other claims. Thus, an attempt must be made to obtain them. The Veteran has not been afforded a VA examination with respect to his claimed bilateral foot disability. Given the Veteran's reports of his foot condition being aggravated during service, the Board finds an examination is warranted to assess the nature and relationship to service of any current foot disability. See June 2016 statement. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). However, where a condition is noted at the time of acceptance into service, the presumption of soundness does not apply. Instead, a preexisting condition will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. In the present case, the record contains a March 1953 Appointment Officer Reserve Corps (OCR) examination report, which noted the Veteran's feet were clinically normal. The Veteran's personnel records show he was inducted into service in September 1953. An October 16, 1953 Entry onto Active Duty examination report found the Veteran had bilateral pes planus to 3 degrees, which was symptomatic and disqualifying. Based on the foregoing, the Board finds that the presumption of soundness does not apply to the Veteran's period of active duty service, as his entrance examination noted the presence of pes planus. The Board also notes that a February 1954 orthopedic consultation noted the Veteran recently began to experience burning and aching over the plantar aspects of the metatarsal heads bilaterally after walking half a mile, and that this had not been present prior to his entrance on active duty. The Veteran has also not been afforded VA examinations for his claimed heart disorder, hypertension, or tendonitis. In the June 2016 statement, the Veteran asserted that diabetes affected all bodily organs, and cited heart problems and hypertension. The Veteran's VA treatment records note a diagnosis of hypertension; however, it is unclear whether he has a heart disorder, though his records show a positive history of coronary artery disease. The Veteran has thus raised the theory of secondary service connection for his claimed heart disorders and hypertension. Accordingly, the Board finds that remand for an examination is warranted for these conditions. The record does not presently indicate a diagnosis of tendonitis, nor has the Veteran provided any clarification as to which body part he is referring. Moreover, the service treatment records do not show a diagnosis of tendonitis. Thus, the Board finds an examination for this claimed condition is not warranted at this time. The Board notes that the act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). Expedited handling is requested.) 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disabilities. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claims, to include from Vidant Medical Center. 3. Thereafter, the Veteran should be afforded a VA examination with an appropriate physician with the requisite medical expertise to determine the nature of any diagnosed foot disorder. The claims file must be made available to and be reviewed by the examiner, and any indicated studies should be performed. Based upon the examination results and review of the electronic claims file, the examiner should provide responses to the following: a. Identify any diagnosed foot disability present since August 2013. b. For pes planus, which preexisted service, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's pes planus was aggravated (i.e., permanently increased in severity) beyond the natural progression of the disability during active service? Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in-service." If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the pes planus by the Veteran's active duty service. c. For each diagnosed foot disorder, other than pes planus, whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder is caused by or related to service, or had onset during a period of ACDUTRA? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The phrase "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of any diagnosed heart disorder and hypertension. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with this examination. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. Following examination of the Veteran, the examiner should, in light of the examination findings and the service and post-service medical evidence of record, provide a written response to the following: a. Identify any currently diagnosed heart disorder present since August 2013. If the Veteran has no diagnosed heart disorder and has had none since August 2013, please state this fact. b. State whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed heart disorder and hypertension are related to service or had onset during a period of ACDUTRA. c. State whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed heart disorder and hypertension are caused by the Veteran's service-connected diabetes mellitus. d. State whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed heart disorder and hypertension are aggravated beyond the normal progress of the disorder by his service-connected diabetes mellitus. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the clinician is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claims on appeal. If any benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs