Citation Nr: 0811397 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-29 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for ischemic heart disease, to include a history of a myocardial infarction. 3. Entitlement to service connection for tinnitus. 4. Whether new and material evidence has been received to reopen a claim for service connection for a right elbow disorder. 5. Whether new and material evidence has been received to reopen a claim for service connection for a pulmonary disorder, to include bronchitis and residuals of pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Marine Corps from January 1958 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issues of entitlement to service connection for a pulmonary disorder and tinnitus 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. A May 1966 rating decision denied entitlement to service connection for a right elbow disorder and a lung disease, no appeal was filed within a year of notification. 2. Some of the evidence received since the May 1966 decision relates to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for a pulmonary disorder; this evidence raises a possibility of substantiating the claim. 3. Evidence received since the May 1966 decision does not relate to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for a right elbow disorder; the evidence does not raise a possibility of substantiating the claim. 4. The medical evidence of record does not show heart disease and hypertension until decades post-service; there is no competent evidence of a nexus between service and heart disease or hypertension. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a right elbow disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. New and material evidence has been received to reopen the claim for service connection for a pulmonary disorder, to include bronchitis and residuals of pneumonia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. Ischemic heart disease with a history of a myocardial infarction was not incurred in or aggravated by active service, nor may such cardiovascular disease be presumed to have been incurred therein. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5103, 5103A; 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 4. Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5103, 5103A; 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159. Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The veteran in this case received notification in May 2004, prior to the rating which is the subject of this appeal; however, this letter did not fully comply with VCAA notification requirements. Specifically, the veteran was not initially informed as to what evidence he needed to provide in order to reopen a claim for entitlement to service connection which had been previously denied (see Kent v. Nicholson, 20 Vet.App. 1, 10 (2006)). The veteran did, however, receive this information in a subsequently issued statement of the case. Thus, the veteran had actual knowledge of what was required to substantiate his claims, curing any defect regarding the timing of notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has made all reasonable efforts to assist the veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed the government's duties to assist him. In the aforementioned VA letter, the veteran was notified of the information and evidence needed to substantiate and complete his claims. The veteran was specifically informed as to what evidence he was to provide and to what evidence VA would attempt to obtain on his behalf. He was also notified of the need to give VA any evidence pertaining to his claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005); Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the Dingess requirements, the veteran was notified of the evidence necessary to establish the disability rating and effective date of award should his claim be granted; however, such notice was after the RO's initial denial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). To the extent that the deficiency with regard to the Dingess requirements raises a presumption of prejudice, such defect would not have operated to alter the outcome in the instant case where the preponderance of the evidence is against reopening a claim for entitlement to service connection for a right elbow disorder and entitlement to service connection for ischemic heart disease and hypertension. That is, the timing defect did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (recognizing that "a demonstration that the outcome would not have been different in the absence of the error would demonstrate that there was no prejudice and thus, the presumption of prejudice is rebutted). The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. The VCAA places an enhanced duty on VA to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The service medical records are included in the file. With regard to the claims for entitlement to service connection for ischemic heart disease and hypertension, there is no indication in the service records of any findings that were attributed to heart disease, nor are there elevated blood pressures or other findings that were attributed to hypertension. There is no post-service medical evidence of such findings until decades after service and there is no competent opinion that links the veteran's service to his current heart disease or hypertension. Under these circumstances, there is no duty to provide a medical examination or medical opinion regarding the etiology of these disorders. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also, e.g., Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). There is no duty to prove an examination or medical opinion with respect to the veteran's application to reopen a claim for service connection for a right elbow disability absent the receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides 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. See Knightly v. Brown, 6 Vet. App. 200 (1994). 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 had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision-makers. 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(a). Legal Criteria-Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Certain chronic conditions, including cardiovascular disease (to include ischemic heart disease and hypertension), if manifest to a compensable degree within a year of service connection shall be presumed to have been incurred in service, and will be service connected. See 38 C.F.R. §§ 3.307. 3.309. Analysis-New and Material Evidence, Right Elbow and Pulmonary Condition The veteran's original claims for service connection for a right elbow disability and a pulmonary disease was denied by a May 1966 rating decision. The bases of the denials were that a VA examination scheduled in conjunction with the claims had ruled out current diagnoses of a pulmonary disease and a right elbow disability, and that the record did not indicate consultation for a right elbow disability while in military service. The veteran did not forward an appeal, and it became final after a year from had elapsed from the date he was notified. The veteran contends that there is new and material evidence of record to reopen the contested claims. With regard to the pulmonary condition, the Board agrees; however, there is nothing of record that supports reopening the claim for service connection for a right elbow disability. The veteran has submitted medical evidence of treatment for pneumonia in November 2002. In addition to this diagnosis, he reports having problems with a chronic cough. While the diagnosis of pneumonia was several years ago, and there is currently no contemporaneously recorded medical evidence to suggest that it developed into a chronic disorder, it is still relatively recent and given the veteran's history of a chronic cough since that time, there is some competent evidence of a current respiratory disorder. As to the cough, the veteran, as a layperson, is competent to describe such a symptom. See Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). With consideration of the veteran's in-service episode of pneumonia and history of a chronic cough since that time, the Board finds that the evidence is new and material, in that the fact of a current diagnosis was previously unestablished and it could potentially substantiate the underlying claim. The claim for service connection for a pulmonary disorder is therefore reopened. However, the underlying claim must be remanded for further evidentiary development. Regarding the application to reopen a claim for service connection for a right elbow disability, there is nothing added to the record since the last final decision which suggests that a current right elbow disability is present or that an injury to the right elbow occurred in service. While there are numerous private medical records in the file which were not in evidence at the time of the initial denial, there is nothing which relates to an unestablished fact necessary to substantiate a claim for service connection. Thus, the claim to reopen must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's application to reopen a claim for entitlement to service connection for a right elbow disorder. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis-Service Connection, Hypertension, Ischemic Heart Disease The veteran contends that he developed cardiovascular disabilities, namely ischemic heart disease and hypertension, as a result of his military service. A review of the service medical records (January 1958 to February 1962) does not indicate complaint, treatment, or diagnosis of cardiovascular problems at any point during active service or in the year following discharge from active service. At service separation, the veteran's blood pressure was 128/82, and his heart and vascular system were found to be normal. A VA examination in April 1966 did not reveal any findings relating to a cardiovascular disease, to include ischemic heart disease and hypertension. Upon review of the record, the Board notes that the veteran first realized significant cardiovascular difficulty in 1990, when he underwent coronary artery bypass and graft surgery to replace a coronary artery damaged by sclerosis and myocardial infarction. Subsequent to this, the veteran, in 1999, had additional stents emplaced to alleviate symptoms of coronary artery disease/ischemic heart disease. The veteran also has a diagnosis of hypertension entered subsequent to his coronary artery surgery. Thus, there is no question that the veteran has current cardiovascular disorders; however, the onset of the conditions is almost 30 years after his separation from service. The Board notes that the passage of time before the onset of symptoms, in and of itself, can be probative when assessing the merits of a claim for service connection. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Given that the service medical records are negative for any pertinent abnormal findings, the record is devoid of any medical evidence of heart disease and hypertension until decades after service and there is no competent opinion that links either disease to service, the Board must deny the claims. There is no duty to apply the benefit of the doubt in his favor, as the preponderance of the evidence is against the veteran's claims for service connection. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for a pulmonary disability; the claim is granted to this extent only. New and material evidence has not been received to reopen a claim for entitlement to service connection for a right elbow. Entitlement to service connection for ischemic heart disease with a history of a myocardial infarction is denied. Entitlement to service connection for hypertension is denied. REMAND Pulmonary Condition and Tinnitus The veteran contends that his pulmonary disease and tinnitus began during or as the result of his military service. The Board is of the opinion that further evidentiary development must occur before a final adjudication on either issue can be made. 38 C.F.R. § 19.9 (2007). With regard to the claim for service connection for tinnitus, the Board notes that the veteran is competent to state whether he has ringing in his ears. That is, by the uniqueness of its presentation, tinnitus is a condition for which the veteran (as a layperson) is competent to report. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). It is also apparent that the veteran served as an artilleryman during his service in the Marine Corps, which would have undoubtedly exposed him to a significant excessive noise. Therefore, given the current disability and circumstances of service, the Board finds that a remand for a comprehensive ear examination is in order to determine if the veteran has tinnitus that is causally linked to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, supra. Regarding the pulmonary condition, as noted above, the veteran had treatment for pneumonia in November 2002. The service medical records reveal a hospital admission for pneumonia and the veteran gives a history of a chronic cough ever since the in-service episode of pneumonia. Thus, there is some evidence of a current disability (although the exact nature of such disability is still unknown), a history of in- service treatment for lung disease, and lay evidence of continuity of at least one relevant symptom (cough). Under these circumstances, the veteran should be afforded a comprehensive pulmonary examination to determine the nature and etiology of any lung disease that may currently be present. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, supra. In view of the foregoing, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Schedule the veteran for VA pulmonary examination for the purpose of determining the nature, approximate onset date and/or etiology of any lung disease that is currently present. Following a review of the relevant evidence in the claims file, the clinical evaluation and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following question: Is it at least as likely as not (50 percent or greater probability) that any lung disease that is currently present began during service or is causally linked to any incident of service? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 3. Schedule the veteran for VA ear examination for the purpose of determining whether he has a current diagnosis of tinnitus and, if so, whether it began during service or is otherwise linked to service, to include his presumed exposure to excessive noise. Following a review of the relevant evidence in the claims file, obtaining a thorough medical, social and industrial history (to include in-service and post-service exposure to excessive noise); the clinical evaluation and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the veteran has a diagnosis of tinnitus? (b) If the answer to (a) is in the affirmative, is it at least as likely as not that the veteran's tinnitus is causally linked to any incident of service, to include his presumed exposure to artillery fire? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 4. After the development requested above has been completed to the extent possible, re-adjudicate the veteran's claims. If either benefit sought on appeal is denied, the veteran and his representative should be furnished a supplemental statement of the case and given the 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). ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs