Citation Nr: 0810695 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-25 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for ulcerative colitis. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinea pedis and tinea cruris (skin disability). 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for left ear hole. 5. Entitlement to service connection for high blood pressure. 6. Entitlement to service connection for residuals of a heart attack. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from April 1968 to April 1970, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from January and May 2005 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The veteran perfected an appeal as to the RO's denials of his claim of service connection for post-traumatic stress disorder (PTSD). In July 2007, however, the RO granted service connection for PTSD. As this represents a full grant of benefits sought, the issue is no longer on appeal. The veteran's ulcerative colitis, skin disability and bilateral hearing loss claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a March 1993 rating action, the RO denied the veteran's application to reopen claims of service connection for ulcerative colitis and skin disability; in an April 1993 letter, the RO notified him of the determination and of his appellate rights, but he did not appeal and the decision became final. 2. The evidence received since the March 1993 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the veteran's ulcerative colitis and skin disability claims. 3. The preponderance of the evidence is against a finding that left ear hole is related to service. 4. The preponderance of the evidence is against a finding that high blood pressure is related to service. 5. The preponderance of the evidence is against a finding that residuals of a heart attack are related to service. CONCLUSIONS OF LAW 1. The March 1993 RO decision that denied an application to reopen the claim for service connection for ulcerative colitis and skin disability is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (1993). 2. Evidence received since the March 1993 rating decision is new and material; the claims of entitlement to service connection for ulcerative colitis and skin disability are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2007). 3. Left ear hole was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007) 4. High blood pressure was not incurred in or aggravated by the service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 5. Residuals of a heart attack were not incurred in or aggravated by service and a cardiovascular disease may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As to the veteran's ulcerative colitis and skin disability claims, because the Board is reopening and remanding these claims for further development, no discussion of VA's duties to notify and assist is necessary. The same is true for the veteran's bilateral hearing loss claim, which the Board is likewise remanding for further development. As to the veteran's left ear hole, high blood pressure and residuals of a heart attack claims, in correspondence dated in November 2004, February 2005, and October 2007, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. In March 2006, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured and the veteran has been medically evaluated in conjunction with his claim. Thus, the duties to notify and assist have been met. Ulcerative colitis and skin disability In March 1993, the RO declined to reopen the veteran's claims of service connection for ulcerative colitis and skin disability. Because the veteran did not submit a Notice of Disagreement (NOD) to the March 1993 rating decision, that determination became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (1993). However, 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. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When determining whether a veteran has submitted new and material evidence sufficient to reopen a claim, VA must consider the evidence received since the last final denial of the claim on any basis, i.e., on the merits or denying reopening. See Evans v. Brown, 9 Vet. App. 273 (1996). As noted in the introduction, the RO granted service connection for PTSD in July 2007. In doing so, the RO determined that the veteran served in combat in Vietnam. Further, as to his ulcerative colitis claim, the new evidence includes an October 2007 statement from Dr. W. E. Lichliter that reflects that he had been treating the veteran since 2000 for chronic ulcerative colitis arising from military service in Vietnam. The Board finds that this evidence raises a reasonable possibility of substantiating the ulcerative colitis claim. As such, the evidence is new and material under the provisions of 38 C.F.R. § 3.156(a) and the claim is reopened. As to his skin disability claim, the new evidence includes VA treatment records and the veteran's statement that his spouse family recognized his skin disorder to be "jungle rot" in the 1970s. In light of the RO's determination that the veteran served in combat, and given that skin problems are consistent with that service, the Board finds that this evidence raises a reasonable possibility of substantiating the skin disability claim. As such, the evidence is new and material under the provisions of 38 C.F.R. § 3.156(a) and the claim is reopened. Left Ear Hole Service medical records are negative for any complaints or findings of a perforated tympanic membrane. The examination at service discharge noted a normal ear and drum (perforation) evaluation. The veteran currently has a perforated left tympanic membrane, as first noted in the record in September 2004, and also in the October 2005 VA examination report. The October 2005 VA examiner reviewed the claims folder in conjunction with the examination and noted that the veteran's current perforation occurred subsequent to separation from service. He opined that it was less likely than not that the veteran's current left tympanic membrane perforation was related to service. Based on the evidence, the Board finds that service connection is not warranted. While the veteran currently has a perforated left tympanic membrane, there is no competent medical evidence that it is related to service. Although he is competent to attest to his observations, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that his current perforated left tympanic membrane is related to service) because he does not have the requisite medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). High Blood Pressure Hypertension may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, this presumption does not apply in the present case as hypertension did not manifest until many years after discharge, as discussed below. The veteran currently has high blood pressure as noted by various records in the claims folder. However, service medical records are negative for findings of high blood pressure and his discharge examination report shows a normal blood pressure reading. The first indication of high blood pressure in the record is in 1996 as noted in a March 2005 letter from J. Pataki, M.D. Based on the evidence, the Board finds that service connection is not warranted. While the veteran currently has high blood pressure, there is no competent medical evidence that it is related to service. Service medical records are negative for any findings of high blood pressure and in fact, the first indication of a disability is not until 1996. This is 26 years after service discharge. The Board declines to obtain a medical nexus opinion with respect to the veteran's service connection claim because there is no evidence of pertinent disability in service or for 26 years following service and high blood pressure is not something a lay person is competent to report. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); 38 C.F.R. § 3.159(a)(2) (2007). Thus, although there is now a diagnosis of high blood pressure, there is no indication that a disability is associated with service. Id. Indeed, in view of the absence of findings of high blood pressure in service and the lack of diagnosis of the claimed disability until many years post-service, any opinion relating pertinent disability to service would be speculative. The veteran is competent to attest to his observations of his disorder. 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that his current high blood pressure is related to service) because he does not have the requisite medical expertise. Id.; see also Espiritu. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert. Residuals of a Heart Attack A cardiovascular disease may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, this presumption does not apply in the present case as a cardiovascular disease did not manifest until many years after discharge, as discussed below. Service medical records are negative for any indication of a heart attack or residuals thereof, and the examination report at service discharge showed a normal heart evaluation. The evidence shows that the veteran had a heart attack around 1995 or 1996 and underwent a quadruple bypass in 1995. The March 2005 letter from Dr. Pataki noted that since 1996, the veteran had several hospitalizations for chest pain and had an abnormal stress nuclear study. Based on the evidence, the Board finds that service connection is not warranted. While the veteran currently has residuals of a heart attack, there is no competent medical evidence that they are related to service. Service medical records are negative for any findings of a heart disability and in fact, the first indication of a disability is not until around 1995. This is 25 years after service discharge. Further, there is no opinion which provides a nexus between service and current disability. The Board declines to obtain a medical nexus opinion with respect to the veteran's service connection claim because there is no evidence of pertinent disability in service or for 25 years following service and heart disability is not something a lay person is competent to report. Woehlaert; 38 C.F.R. § 3.159(a)(2). Thus, although there is current evidence of current heart disability, there is no indication that the disability is associated with service. Id. Indeed, given the absence of heart problems in service and the lack of diagnosis until many years post-service, any opinion relating pertinent disability to service would be speculative. The veteran is competent to attest to his observations of his disorder. 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that his current high blood pressure is related to service) because he does not have the requisite medical expertise. Id.; see also Espiritu. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert. ORDER New and material evidence to reopen claim of service connection for ulcerative colitis has been presented; to this extent, the appeal is granted. New and material evidence to reopen claim of service connection for skin disability has been presented; to this extent, the appeal is granted. Service connection for left ear hole is denied. Service connection for high blood pressure is denied. Service connection for residuals of a heart attack is denied. REMAND As a preliminary matter, the Board reiterates that VA has determined that the veteran served in combat while serving in the Republic of Vietnam. In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In light of the foregoing, before the Board can proceed to the merits of the veteran's ulcerative colitis and skin disability claims, the Board finds that a VA examination is necessary to determine whether it is at least as likely as not that the conditions are related to or had its onset during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The same is true for his bilateral hearing loss claim as his exposure to in-service acoustic trauma is consistent with the circumstances, conditions and hardships of his combat service. As such, the Board has no discretion and must remand these claims for further development. As to his bilateral hearing loss claim, the Board also observes that the October 2005 VA audiologist, in essence, concluded that the veteran's hearing loss was not related to service because there was no in-service evidence of hearing loss. The examination report is not adequate for rating purposes because the audiologist did take into consideration the lay evidence of record suggesting a relationship between service and the veteran's hearing impairment. See Dalton v. Nicholson, 21 Vet. at 39 (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of his ulcerative colitis. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not that any ulcerative colitis found to be present is related to or had its onset in the veteran's period of service. In doing so, the examiner should acknowledge the veteran's report of a continuity of symptomatology. The rationale for any opinion expressed should be provided in a legible report. 2. The RO should arrange for the veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any skin disability found to be present. The examiner must rule in or exclude diagnoses of tinea pedis and tinea cruris. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not that any skin disability found to be present, to specifically include tinea pedis and tinea cruris, is related to or had its onset in the veteran's period of service. In doing so, the examiner should acknowledge the veteran's report of a continuity of symptomatology. The rationale for any opinion expressed should be provided in a legible report. 3. The RO should arrange for the veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of his hearing loss. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not that any hearing loss found to be present is related to the veteran's in-service acoustic trauma. In doing so, the examiner should acknowledge the veteran's report of a continuity of symptomatology. The rationale for any opinion expressed should be provided in a legible report. 4. Then, the RO should readjudicate the claims. In doing so, the RO must specifically consider 38 U.S.C.A. § 1154(b) (West 2002) and 38 C.F.R. § 3.304(d) (2007). If the benefits sought on appeal are not granted in full, the RO should issue a supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs