Citation Nr: 0813700 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-06 940 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for hearing loss disability. 3. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine associated with Reiter's Syndrome. 4. Entitlement to a compensable rating for urethritis associated with Reiter's Syndrome. 5. Entitlement to a compensable rating for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from June 1965 to November 1985. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the RO. In February 2008, the veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. The following issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.: Entitlement to service connection for hearing loss disability; entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine associated with Reiter's Syndrome; entitlement to a compensable rating for urethritis associated with Reiter's Syndrome; and entitlement to a compensable rating for hypertension. FINDINGS OF FACT 1. In an unappealed rating decision, dated in April 1986, the RO denied the veteran's claim of entitlement to service connection for hearing loss disability. 2. Evidence associated with the record since the April 1986 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss disability. CONCLUSIONS OF LAW 1. The RO's April 1986 rating decision, which denied the veteran's claim of entitlement to service connection for hearing loss disability, is final. 38 U.S.C. § 4005 (1982) (codified as amended at 38 U.S.C.A. § 7105 (West 2002 and Supp. 2007); 38 C.F.R. § 19.192 (1985) (codified as amended at 38 C.F.R. § 20.1103 (2007)). 2. New and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for hearing loss disability. 38 U.S.C.A. § 5108 (West 2002 and Supp. 2007); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of his application to reopen a claim of entitlement to service connection for hearing loss disability. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met its duty with respect to that specific issue. In a letter, dated in May 2004, the RO provided timely notice to the veteran regarding the information and evidence necessary to substantiate his claim for service connection hearing loss disability. In particular, the RO advised the veteran of the evidence necessary to substantiate the element or elements require to establish service connection that were found insufficient in the previous denial. The RO also specified the information and evidence to be submitted by him, the information and evidence to be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertained to his claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the foregoing notices, the veteran submitted additional evidence to support a grant of his application to reopen a claim of entitlement to service connection for hearing loss disability. Moreover, the Board has granted that application. Therefore, further action is unnecessary in order to meet VA's statutory duty to assist the veteran in the development of that issue. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (development that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board will discuss the reasons and bases for its decision below. Analysis The veteran contends that his hearing loss disability is primarily the result of noise exposure during his lengthy service career, including that which he experienced as a supervisor of an anti-aircraft missile battery. Therefore, he maintains that service connection for hearing loss disability is warranted. Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, establish that a particular disease or injury resulting in disability was incurred coincident with active military, naval, or air service, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may, however, 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). For certain disabilities, such as sensorineural hearing loss disability, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. A review of the record discloses that this is not the veteran's first claim of entitlement to service connection for hearing loss disability. Such a claim was before VA in April 1986. Relevant evidence on file at that time included the veteran's service medical records and reports of VA examinations, performed in February and March 1986. The veteran's service medical records showed that in September 1984, the veteran had a designation of H2 on his physical profile or PULHES. The examiner recognized the veteran's pre-service hearing loss disability, when he assigned a numerical designation of 2 under H on the veteran's physical profile, i.e., PULHES. Then, as now, PULHES is the six categories into which a physical profile is divided. The H for hearing and ear, and the number 2 indicates that an individual possesses some medical condition or physical defect which may impose some limitations on classification and assignment. During a medical board examination in June 1985, the veteran reported hearing loss disability and audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 35 15 15 LEFT 10 25 25 15 25 Despite the foregoing findings, the veteran's service medical records were negative for any diagnosis of hearing loss disability. The report of the March 1986 VA audiologic examination was similarly negative; and therefore, service connection for hypertension was denied. The veteran was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Accordingly, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 4005; 38 C.F.R. §§ 19.192. In April 2004, the veteran submitted an application to reopen his claim of service connection for hearing loss disability. In support of that claim, the veteran submitted evidence of current hearing loss disability. After reviewing the record, the Board finds that the claim of service connection for hearing loss disability should be reopened and the claim considered on a de novo basis. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. 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 which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In any event, if new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See, Elkins v. West, 12 Vet. App. 209 (1999). Following the RO's April 1986 decision, VA added a regulation which set forth the criteria for determining whether the veteran did, in fact, have hearing loss disability. As amended, that regulation states that for VA purposes, impaired hearing is considered a disability 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 (+15), 1000 (+10), 2000 (+10), 3000 (+10), or 4000 Hertz (+5) is 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 failure to meet those criteria at the time of a veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A veteran may still establish service connection by submitting evidence that he has current hearing loss disability related to service. 38 C.F.R. § 3.303(d); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Not only has there been a relevant change in the regulations, evidence added to the record since the RO's April 1986 decision includes the report of an April 2005 consultation with the VA Audiology service at or through the VA outpatient clinic in Austin. Texas. Although the report does not contain the actual record of audiometric testing, it shows that the veteran has current bilateral sensory neural hearing loss disability. Such evidence is new in the sense that it has not previously been before VA. It is also material in that it fills a major deficit in the evidence as it existed in April 1986. There a current diagnosis, and the change in the regulations enables the veteran to show hearing loss disability in his right ear at the time of his June 1985 Medical Board examination. Moreover, the revised regulations enable the veteran to show that the puretone thresholds in his left ear at 1000, 2000, and 4000 hertz were at the upper limits of normal. Further, the H2 designation on PULHES in September 1984 tends to confirm the presence of hearing loss disability in service. The additional evidence is neither cumulative nor redundant of the evidence of record in April 1986 and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim service connection for hearing loss disability. As such, it is sufficient to reopen the claim. To that extent, the appeal is allowed. ORDER New and material evidence having been submitted, the application to reopen a claim of entitlement to service connection for hearing loss disability is granted. REMAND In light of the foregoing decision, the VA may proceed to evaluate the merits of the veteran's claim of entitlement to service connection for hearing loss disability. Elkins. However, in this case, it would be premature for the Board to do so prior to the RO, as such action could result in prejudice to the veteran's claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); VAOPGCPREC 16-92. Although the additional evidence is sufficient to reopen the claim of service connection for hearing loss disability, the record is negative for evidence of a nexus between the veteran's current hearing loss disability and that demonstrated in service. In this regard, the veteran has not had a VA examination since 1986 to determine the nature and etiology of his hearing loss disability. The evidence is also negative for the report of audiometric testing performed at or through the Austin VA outpatient clinic in April 2006. The veteran also seeks entitlement to increased ratings for the following service-connected disabilities: degenerative disc disease, currently evaluated as 20 percent disabling; hypertension, evaluated as noncompensable; and urethritis evaluated as noncompensable. In October 2004, the veteran underwent VA examinations to determine the extent of impairment due to his hypertension and urethritis. However, the claims file was not available for review by either examiner. Thus, those examinations were incomplete and could not provide a basis for a fully informed medical determination. In February 2008, R. A., M.D. noted that the veteran was still being treated for hypertension. However, there are no clinical records on file reflecting such treatment after March 2005. During his February 2008 hearing before the undersigned Veteran's Law Judge, the veteran testified he was taking medication for urethritis. He also testified that his service-connected low back disability had gotten worse. In this regard, he stated that his service-connected low back disability had had a significant impact on his employment and that he could not perform heavy lifting required by his job in computer and printer repair. Despite the foregoing testimony, information from the veteran's employer has not been associated with the claims folder, and his back has not been examined by VA since October 2005. In developing a claim for increased-compensation, VA must notify the veteran that, to substantiate a claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. 38 U.S.C.A. § 5103(a); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). VA must notify the veteran that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Further, if the Diagnostic Code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the veteran. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores. VA notice requirements apply to all five elements of a claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. To date, however, VA has not notified the veteran that once service connection for a particular disability had been established, a disability rating will be assigned in accordance with the criteria set forth in the VA schedule for evaluating disabilities. 38 C.F.R. Part 4. VA has also failed to notify the veteran that if service connection is granted, an effective date for the award of benefits will be assigned and will be based, generally, on the date of the receipt of the claim for benefits or when the evidence showed a level of disability that supported a certain rating under the rating schedule. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Board notes that during an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the analysis must be undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In light of the foregoing, additional development of the record is warranted prior to further consideration by the Board. Accordingly, the case is REMANDED for the following actions: 1. Ensure compliance with VA's duties to notify and assist the veteran in the development of his claim of entitlement to service connection for hearing loss disability and his claims for increased ratings for degenerative disc disease of the lumbar spine, urethritis, and hypertension. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In particular, ensure that the veteran is notified of the considerations set forth in Dingess/Hartman and in Vasquez-Flores. 2. Request that the veteran provide a history of his employment since March 2003, including, but not limited to, the name and address of each employer, as well as the dates of each period of employment. For any period that the veteran was self-employed, request that he identify the people who hired him, including, but not limited to, any clients and contractors or sub- contractors for whom he worked. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. 3. When the actions in part 2 have been completed, contact each employer/former employer and request copies of the veteran's employment records, including, but not limited to, employment applications; medical records and the reports of any pre-employment examinations; attendance records and the reasons for any absences; job descriptions; reports of job training; reports of duty limitations or job changes and the reasons for such limitations or changes; reports of workman's compensation claims or claims for other disability benefits; reports of vocational rehabilitation or job retraining; counseling statements; customer/client letters; reports of union involvement; and reports of termination and any associated severance pay. If the employer/former employers do not have such documents, request that the employer/former employers provide a statement on business letterhead stationary addressing the foregoing concerns. For any period that the veteran was self- employed, request a letter containing such information from the people who hired him, including, but not limited to, clients and any contractors or sub- contractors for whom he worked. Also request that the veteran provide any such information in his possession. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. Efforts to obtain records of the veteran's employment with any Federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If records of the veteran's employment with a non-Federal employer are unavailable, notify the veteran of that fact in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 4. Request that the veteran provide the name and address of all health care providers, VA and non-VA, who have treated him since service for hearing loss disability and who have treated him since March 2003 for degenerative disc disease, urethritis, and hypertension. Also request that the veteran provide the names and addresses of all facilities where he was treated, as well as the dates of such treatment. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. 5. When the actions in part 4 have been completed, request the evidence from the health care provider(s)/facility(ies) identified by the veteran. Such evidence must be requested directly from each health care provider/facility and should include, but are not limited to, discharge summaries, consultation reports, X-ray reports, laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records. In particular, request the report of the veteran's audiometric testing performed in April 2006 by or through the Austin VA outpatient clinic. Also request records from R. A., M.D., reflecting the veteran's treatment for hypertension since March 2005. Furthermore, request that the veteran provide any such records he may have in his possession. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the evidence is in the possession of an department or agency of the Federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If the requested evidence is unavailable and is in the possession of an entity other than a department or agency of the Federal government, notify the veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 6. When the actions in parts 1, 2, 3, 4, and 5 have been completed, schedule the veteran for an audiologic examination to determine the nature and etiology of any hearing loss disability found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder, and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If hearing loss disability is found, the examiner must identify and explain the elements supporting the diagnosis. The examiner must also respond to the inquiry as to whether or not any hearing loss disability is etiologically related to any hearing impairment in service in September 1984 or June 1985. The examiner must state the medical basis or bases for this opinion. If the examiner is unable to so state without resort to speculation, he or she should so state. 7. When the actions in parts 1, 2, 3, 4, and 5 have been completed, schedule the veteran for orthopedic and neurologic examinations to determine the extent of impairment due to his service-connected degenerative disc disease of the lumbar spine. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder, and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must identify and explain the elements supporting the diagnosis of degenerative disc disease of the lumbar spine and distinguish them from any other lumbar spine disability found to be present. In reporting the manifestations of the veteran's degenerative disc disease, the examiner must report the following: a. the veteran's range of motion with respect to flexion, extension, lateral flexion, and rotation; b. whether there is ankylosis of the lumbar spine, either favorable or unfavorable, and if so, whether it results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Note that fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis; c. whether there are associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment; d. whether because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the lumbar spine, the veteran's range of lumbar spine motion should be considered normal for that individual, even though it does not conform to the normal range of motion; e. whether there a lack of normal endurance; functional loss due to pain and pain on use including that experienced during flare ups; weakened movement, excess fatigability, and incoordination; and the effects of the disability on the veteran's ordinary activity; f. whether the veteran has incapacitating episodes, and if so, the total duration of such episodes during the past 12 months. Note: An incapacitating episode is a period of acute signs and symptoms due to degenerative disc disease that requires bed rest prescribed by a physician and treatment by a physician. 8. When the actions in parts 1, 2, 3, 4, and 5 have been completed, schedule the veteran for a cardiovascular examination to determine the extent of impairment due to his service-connected hypertension. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder, and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must report the diastolic and systolic readings and whether the veteran requires continuous medication for control of hypertension. 9. When the actions in parts 1, 2, 3, 4, and 5 have been completed, schedule the veteran for a genitourinary examination to determine the extent of impairment due to his service-connected urethritis. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder, and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must identify and explain the elements supporting the diagnosis of urethritis and distinguish them from any other genitourinary disability found to be present. In reporting the manifestations of the veteran's urethritis, the examiner must report the following: a. whether the veteran must wear absorbent pads and the number of times per day that they must be changed; b. the intervals between voiding during the day and at night; c. whether there is obstructive symptomatology requiring dilatation, if so, the number of times per year the veteran requires dilatation or whether he requires intermittent or continuous catheterization. 10. When the actions requested in parts 1, 2, 3, 4, 5, 6, 7, 8, and 9 have been completed, undertake any other indicated development, if deemed by the RO/AMC to be appropriate under the law. Then readjudicate the issues of entitlement to service connection for hearing loss disability and entitlement to increased ratings for degenerative disc disease, hypertension, and urethritis. In so doing, consider the possibility that different ratings may be warranted for different time periods. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action unless he is notified to do so. It must be emphasized, however, that the veteran has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs