Citation Nr: 0814201 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-00 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's previously denied claim of service connection for tinnitus. 2. Whether new and material evidence has been received to reopen the veteran's previously denied claim of service connection for hypertension. 3. Whether new and material evidence has been received to reopen the veteran's previously denied claim of service connection for heart disease with ventricular arrhythmia and pacemaker placement with cardiomyopathy (heart condition). 4. Whether new and material evidence has been received to reopen the veteran's previously denied claim of service connection for diabetes mellitus. 5. Entitlement to service connection for emphysema. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from September 1972 to February 1985. As reflected in the discussion below, the veteran contends that he had service from September 1966 to December 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Seattle, Washington. The Board notes that the veteran originally filed a request to reopen his previously denied claims of service connection for a heart condition and diabetes mellitus in January 2002. The RO declined to reopen the veteran's claim in an April 2004 rating decision. The veteran did not appeal that denial. In March 2005, the veteran filed the instant claim- including a request to reopen his claims of service connection for a heart condition and diabetes mellitus. Initially, service connection for tinnitus, hypertension, heart condition and diabetes mellitus was denied in a February 1998 rating decision. The veteran did not appeal the decision. As noted above, the veteran requested to reopen his claims of service connection for a heart condition and diabetes mellitus in January 2002 and the claim was subsequently denied in April 2004. Before the Board may consider the merits of previously denied claims, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. "[T]he Board does not have jurisdiction to consider a claim which [has been] previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find." See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Further, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Accordingly, the matter appropriately before the Board is whether new and material evidence has been presented to reopen the previously denied claims of service connection for tinnitus, hypertension, a heart condition and diabetes mellitus. The veteran and his wife appeared and testified at a February 2008 Travel Board hearing at the Seattle RO. A transcript is of record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The RO initially denied entitlement to service connection for tinnitus, hypertension, heart condition and diabetes mellitus in February 1998. The veteran was notified of the decision and of his appellate rights, but did not appeal the denial. 3. The RO declined to reopen the veteran's claims of entitlement to service connection for a heart condition and diabetes mellitus in April 2004. The veteran was notified of the decision and of his appellate rights, but did not appeal the denial. 4. Since February 1998, new and material evidence has been received regarding the veteran's previously denied claim of service connection for tinnitus. 5. The veteran is not currently diagnosed as having tinnitus attributable to his active service. 6. Evidence obtained since February 1998 regarding the veteran's claim of entitlement to service connection for hypertension is not new and material. 7. Evidence obtained since April 2004 regarding the veteran's claims of entitlement to service connection for a heart condition and diabetes mellitus is not new and material. 8. The veteran is not currently diagnosed as having emphysema. CONCLUSIONS OF LAW 1. The February 1998 rating decision denying service connection for tinnitus, hypertension, heart condition and diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. Evidence obtained since February 1998 regarding the veteran's claim of service connection for tinnitus is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 4. Evidence obtained since the February 1998 rating decision denying service connection for hypertension is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 5. Evidence obtained since the last final decision in April 2004, declining to reopen the veteran's claims for service connection for a heart condition and diabetes mellitus, is not new and material and the claims are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 6. The criteria for entitlement to service connection for emphysema have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claims for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claims. In letters dated in June 2002 and March 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his claims for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in March 2006. Although there was no Statement of the Case issued following the Dingess notice, the Board finds that the veteran is not prejudiced as service connection is being denied. With respect to obtaining new and material evidence, the Board finds that the March 2005 letter also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the veteran was advised of the exact reason for the previous denials and the evidence needed to reopen the claims. In March 2005, the veteran filed a new claim, including a request to reopen the previously denied claims of service connection for a heart condition and diabetes mellitus. The veteran was provided with notice in compliance with Kent that same month. The Board finds that the veteran was provided with adequate notice of the evidence necessary to reopen his previously denied claims. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the March 2005 VCAA notice was given prior to the appealed AOJ decision, dated in June 2005. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. In February 2008, the veteran appeared and testified at a Travel Board hearing at the Seattle RO. VA is not required to schedule the veteran for a physical examination for his claim of service connection for emphysema because the evidence does not meet the criteria set forth in 38 C.F.R. § 3.159(c)(4). Specifically, there is no credible evidence of an event, injury, or disease in service upon which a current disability may be based. As such, the Board will not remand this case for a medical examination. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file. In fact, the veteran submitted a communication to VA, dated in April 2006, indicating that he had no further evidence to submit to substantiate his claims. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the veteran and that no further action is necessary to meet the requirements of the VCAA. New and material evidence The veteran was initially denied service connection for tinnitus, hypertension, a heart condition and diabetes mellitus in a February 1998 rating decision. The RO found, inter alia, that there was no link between the veteran's service and his claimed hypertension, heart condition or diabetes mellitus. Additionally, the RO found that the veteran was not diagnosed as having tinnitus. In January 2002, the veteran sought to reopen his claims of service connection for a heart condition and diabetes mellitus. In April 2004, the RO declined to reopen the veteran's previously denied claim of service connection for a heart condition and diabetes mellitus finding new and material evidence had not been received to reopen the claim. The veteran was advised of the denial of benefits and of his appellate rights, but did not appeal either decision. As such, they became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to an application submitted in March 2005, the veteran seeks to reopen his previously denied claims of service connection for tinnitus, hypertension, a heart condition and diabetes mellitus. Generally, where prior RO decisions have become final, they may only be reopened through the receipt of new and material evidence. 38 U.S.C.A. § 5108. Where new and material evidence is presented or secured with respect to claims which have been disallowed, the Secretary shall reopen the claims and review the former dispositions of the claims. Evidence presented since the last final denial will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New and 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. 38 C.F.R. § 3.156. 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 it must raise a reasonable possibility of substantiating the claim. Id. The credibility of new evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the February 1998 rating decision included the veteran's service medical records (SMRs), post-service medical treatment records, dated from August 1994 to December 1999, and a VA audiological examination, dated in October 1997. Evidence received since the February 1998 rating decision includes, private treatment records, dated December 1999 to January 2000, private treatment records, dated from January 2000 to April 2000, a VA general medical examination, dated November 2000, a VA audiological examination, dated December 2000, a January 2002 statement from the veteran's former wife, the veteran's statement, dated in January 2002, and VA treatment records, dated from June 2000 to May 2005. Evidence received since the last final decision on the veteran's request to reopen his previously denied claims of service connection for a heart condition and diabetes mellitus includes, VA treatment records, dated from February 2004 to May 2005 and the February 2008 hearing transcript. Tinnitus At the veteran's December 2000 VA audiological examination, the veteran complained of occasional bilateral tinnitus. He said that the ringing was louder in the left ear and lasted 3 to 5 minutes, 7 to 8 times per month. The veteran advised that these symptoms were present in the past 2 to 3 years. The veteran was diagnosed as having sensorineural hearing loss, but no diagnosis was made regarding his claimed tinnitus. There are no additional treatment records regarding the veteran's claimed tinnitus associated with the claims file. In February 2008, the veteran testified that he was exposed to acoustic trauma while in service. He advised that the in- service noise exposure was 25 to 30 yards away from him and that he wore hearing protection. He testified that although he was wearing hearing protection, the noise he encountered was still loud. He could not recall being exposed to any other noise following service. The Board finds that the veteran's report of tinnitus at his December 2000 VA audiological examination constitutes new and material evidence. This piece of evidence is new as it was not before agency decision makers when deciding the original claim, and it is material because it speaks to an unestablished fact necessary to substantiate the claim- specifically, whether the veteran has a current disability. The credibility of this new and material evidence is presumed for purposes of reopening the claim. Therefore, the veteran's previously denied claim of service connection for tinnitus, is reopened. Hypertension The veteran seeks to reopen his previously denied claim of service connection for hypertension. The veteran was previously denied service connection for hypertension as there was no evidence that the veteran had high blood pressure or was diagnosed as having hypertension while in service. In November 2000, the veteran underwent a General Medical Examination (GME) at VA. The veteran was noted to have a hypertension diagnosis in 1997. He advised that he was under medication therapy to control his blood pressure and had no related symptoms. The veteran was diagnosed as having hypertension. No opinion was given as to whether the veteran's hypertension had its onset during service. The veteran's subsequent VA treatment records reflect a consistent diagnosis of hypertension-sometimes noted as being in poor control. Since the February 1998 rating decision, there is no evidence of record, either in VA treatment records or private treatment records, linking the veteran's hypertension to service. Following a complete and careful review of the record, the Board finds that evidence obtained since February 1998 is new, in that it was not previously before agency decision- makers when deciding the original claim. The evidence, however, is not material because it does not speak to an unestablished fact necessary to substantiate the claim- specifically, whether there is a link between the veteran's current hypertension and service. The medical evidence submitted merely notes the veteran's current hypertension and a history of poor control of his hypertension. In fact, the GME lists the veteran as first being diagnosed as having hypertension in 1997. None of the treatment records indicated any link between the veteran's service and his current diagnosis. Records showing treatment years after service which do not link the post-service condition to service in any way are not considered new and material evidence. See Cox v. Brown, 5 Vet. App. 95 (1993). Consequently, the claim is not reopened and service connection for hypertension remains denied. Heart condition and diabetes mellitus The veteran seeks to reopen his previously denied claims of service connection for a heart condition and diabetes mellitus. The most recent final decision on these claims was in an April 2004 rating decision with a finding that new and material evidence had not been received to reopen the claims. The veteran did not timely appeal the denial and subsequently filed a new request to reopen the claims. The veteran was originally denied service connection for a heart condition and diabetes mellitus in a February 1998 rating decision which found no evidence that the claimed conditions had their onset during service. The veteran's VA treatment records, dated from February 2004 to May 2005 reflect ongoing treatment for the veteran's heart condition and diabetes mellitus. The records, however, are devoid of any link between the veteran's current disabilities and service. At his February 2008 Travel Board hearing, the veteran testified that he had a heart attack in 1987 or 1988. He recalled being diagnosed as having a heart problem while overseas by a private physician. That treatment record is not associated the claims file, nor does it appear that the veteran was able to obtain it. Upon review of the evidence of record, the Board finds that the evidence related to the veteran's heart condition and diabetes mellitus is new, as it was not before agency decision makers at the time of the April 2004 rating decision. The evidence, however, is not material as it does not relate to unestablished facts necessary to substantiate his claims for service connection-namely, there is no medical evidence of record to link the veteran's heart condition and diabetes mellitus to service. The veteran simply reiterated similar evidence that was of record at the time of the April 2004 rating decision-namely, his assertion that he had a heart problem soon after service separation. Pursuant to Cox as noted above, absent evidence linking the veteran's current disabilities to service, the evidence submitted does not constitute new and material evidence. Thus, the veteran's claims for service connection for a heart condition and diabetes mellitus are not reopened and service connection remains denied. Service connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection, there must be competent evidence showing the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999). Tinnitus As reflected in the section above, the Board has reopened the veteran's previously denied claim of service connection for tinnitus. The veteran contends that his claimed tinnitus is due to in-service noise exposure. The veteran's SMRs are devoid of any reference to tinnitus or complaints of ringing in the ears. In a medical examination report, dated in April 1984, the veteran was not noted to have tinnitus. In November 1984 and January 1985, the veteran indicated that he did not wish to undergo a separation medical examination. The veteran's post-service treatment records are also devoid of any complaints or diagnoses of tinnitus. At the veteran's October 1997 VA audiological examination he reported no tinnitus. As noted in the section above, the veteran first reported symptoms of tinnitus during his December 2000 VA audiological examination. He experienced occasional ringing in the ears, lasting 3 to 5 minutes, 7 to 8 times per month and the ringing was worse in left ear than the right. The veteran advised that his symptoms had their onset 2 to 3 years prior to the examination. The veteran was not formally diagnosed as having tinnitus and no opinion was made as to whether these symptoms were related to any acoustic trauma in service. At his hearing, the veteran testified that he experienced acoustic trauma in service. He stated that he used hearing protection but that the noise was still loud. Given the evidence as outlined above, the Board finds that the veteran's claimed tinnitus did not have its onset during service, or for many years thereafter. Although the veteran was not formally diagnosed as having tinnitus, the Board finds him competent to relate the symptoms associated with the claimed disability. The Board appreciates the veteran's testimony that acoustic trauma in service caused his tinnitus. The Board notes, however, that the veteran is competent, as a layman, to report that as to which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not, however, competent to offer his medical opinion as to cause or etiology of the claimed disability, as there is no evidence of record that the veteran has specialized medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opinion on matter requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Of note, the veteran advised that he first experienced ringing in his ears in 1997 or 1998-well over 10 years following service discharge. Further, the veteran's SMRs, as well as his post-service treatment records, are devoid of any complaints or diagnoses of tinnitus. Absent a competent medical opinion linking the veteran's claimed tinnitus to service, service connection must be denied. Emphysema The veteran seeks service connection for emphysema. The veteran's SMRs are devoid of any complaints of a pulmonary condition or a diagnosis of emphysema. As noted in the section above, the veteran elected to not undergo a discharge medical examination. In an April 1984 medical examination report, the veteran underwent pulmonary function tests (PFT). The veteran's scores were: FEV1 at 3.5 (93.1%), FVC at 4.0 (106.4%) and FEV/FVC at 87.5%. There was no notation of any abnormalities found. In a private treatment record, dated in June 1996, the veteran was noted to have probable COPD. He had sought treatment for shortness of breath and chest pain and underwent a cardiac catheterization. In another record, the veteran was diagnosed as having emphysema. In a June 1997 treatment record, the veteran was again noted to have COPD. In a December 1999 letter from a treating physician, the veteran was noted to have emphysema. In a July 2000 treatment note, the veteran advised a VA health technician that he had no history of COPD. During the veteran's November 2000 GME, he reported having been told that he had emphysema. The veteran was noted to have been a smoker since age 19 and continued to smoke one pack per day. He advised that he had never required inhaler therapy and had never been hospitalized for pulmonary issues. The veteran reported occasional wheezing and shortness of breath-usually, upon arising in the mornings. He did not relate any limitation of his daily functions due to any lung condition. Upon physical examination of the chest, the veteran had pronounced expiratory breath sounds, but there was no finding of crackles or wheezes. The examiner diagnosed the veteran as having tobacco abuse with a questionable history of emphysema. In February 2001, the veteran was noted to have COPD. At that time, the cardiologist referenced the veteran's December 2000 PFTs. His predicted scores were FEV1 at 2.60 (62%), FEF 25-75 (45%), FVC 68% and DLCO at 60%. In April 2001, the veteran sought treatment for episodes of wheezing, causing shortness of breath, for the 3 days prior. The veteran advised that he had no previous history of wheezing, and these episodes lasted 10 minutes and usually occurred early in the morning. Upon physical examination, the veteran was noted to have a few "scattered" wheezes, but the air was moving well throughout his lungs. In a March 2004 VA treatment note, the veteran complained of shortness of breath. The physician's assistant indicated that the shortness of breath was due to the veteran's overcorrected hypertension. The veteran was not noted to have pain or tachycardia and his symptoms were mild and episodic. The veteran was not diagnosed as having any lung condition. The veteran testified in February 2008 that he was never treated for emphysema in service, nor was he treated for any upper or lower respiratory conditions. He related that he first began to experience problems breathing a year or a year and a half following service discharge. The veteran hinted that he may have been treated by a private physician in Orange County, but did not elaborate on the contents of the referenced treatment record. The veteran is not currently diagnosed as having a lung condition, nor were his previous lung-related diagnoses found to be related to his service. Given the evidence as outlined above, the Board finds that there is no current diagnosis of emphysema or a lung condition. Absent a disease or injury incurred during service or as a consequence of a service-connected disability, the basic compensation statutes cannot be satisfied. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001). Assuming arguendo that the veteran was currently diagnosed as having emphysema or a lung condition, there is no evidence of record to suggest that the veteran had a lung condition in service or for many years thereafter. Further, there is no clinical evidence of record linking any previously noted lung condition to service. The Board recognizes that the veteran was noted to have emphysema and COPD in his past treatment records. The veteran's more recent VA treatment records reflect that any shortness of breath was likely caused by overcorrected hypertension and there is no current lung- related diagnosis. Upon review of the veteran's April 1984 PFTs scores, the veteran pulmonary function basically found to be within normal limits. Therefore, because there is no evidence of a current lung condition, including emphysema, related to the veteran's service, service connection must be denied. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, the claim of service connection for tinnitus, is reopened. New and material evidence having not been obtained, the claim of entitlement to service connection for hypertension is not reopened and remains denied. New and material evidence having not been obtained, the claim of entitlement to service connection for a heart condition is not reopened and remains denied. New and material evidence having not been obtained, the claim of entitlement to service connection for a diabetes mellitus is not reopened and remains denied. Service connection for tinnitus is denied. Service connection for emphysema is denied. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs