Citation Nr: 1004792 Decision Date: 02/02/10 Archive Date: 02/18/10 DOCKET NO. 06-07 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for bilateral elbow disabilities. 3. Entitlement to service connection for degenerative joint disease (DJD) of both hips. 4. Entitlement to service connection for DJD of both knees. 5. Entitlement to service connection for DJD of both ankles. 6. Entitlement to service connection for pes planus with DJD and plantar calcaneal spur. 7. Whether new and material evidence as been received to reopen a claim of service connection for a low back disability. 8. Whether new and material evidence as been received to reopen a claim of service connection for loss of teeth. 9. Whether new and material evidence as been received to reopen a claim of service connection for bilateral hearing loss, and, if so, whether service connection is warranted. 10. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1955 and from October 28, 1962 to November 28, 1962. He had additional reserve duty with the Army National Guard. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). Following the issuance of an October 2008 statement of the case (SOC), the Veteran was informed that he had 60 days to submit his substantive appeal. A review of the record shows that it was received somewhat beyond that prescribed time. There is no indication that the RO notified him of this late submission, and at the time of his personal hearing, he believed that these issues were on appeal. The Board is cognizant of the recent decision in Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) determined, in essence, that the late filing of a substantive appeal may not be a jurisdictional bar to review by the Board. Under these circumstances, the Board will proceed with the issues as listed on the title page of this decision. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in July 2009. A transcript of the testimony is of record. The Board also notes that additional evidence was submitted by the Veteran since the last SOC. The Veteran has signed a waiver of initial review by the RO. Consequently, the Board may proceed with review of all evidence of record. 38 C.F.R. § 20.1304(c)(2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for bilateral hearing loss and for erectile dysfunction are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prostate cancer is not shown to be causally related to service. 2. The most competent and probative evidence of record does not demonstrate a relationship between military service and a chronic left elbow disability, DJD of the hips, knees and ankles/foot and plantar calcaneal spur. 3. Preexisting pes planus did not increase in severity during service. 4. Service connection for a low back disability was denied by the RO in a May 2005 rating action. The Veteran was notified of this action and of his appellate rights, but failed to file a timely appeal. 5. Since the May 2005 decision denying service connection for a low back disability, the additional evidence, not previously considered, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 6. The Veteran, who was released from active duty in August 1955 and November 1962, is claiming service connection for loss of teeth. 7. The May 1983 rating decision denied service connection for loss of all teeth, and the Veteran did not file an appeal. No additional evidence has been received since that time that is not redundant or duplicative of evidence previously of record. 8. Service connection for bilateral hearing loss was denied by the RO in a May 1983 rating action. The Veteran was notified of this action and of his appellate rights, but failed to file a timely appeal. 9. Since the May 1983 decision denying service connection for bilateral hearing loss, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Service connection for prostate cancer is not warranted. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 2. Service connection for bilateral elbow disabilities is not warranted. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 3. Service connection for degenerative joint disease of the hips is not warranted. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 4. Service connection for degenerative joint disease of the knees is not warranted. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 5. Service connection for degenerative joint disease of the ankles is not warranted. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 6. Service connection for pes planus with DJD and plantar calcaneal spur is not warranted. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). 7. The additional evidence submitted subsequent to the May 2005 decision of the RO, which denied service connection for a low back disability, is not new and material; thus, the claim for service connection for this disability is not reopened, and the May 2005 RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 8. The additional evidence submitted subsequent to the May 1983 decision of the RO, which denied service connection for a dental disorder, including loss of teeth, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.381, 17.161 (2009). 9. The additional evidence submitted subsequent to the May 1983 decision of the RO, which denied service connection for a bilateral hearing loss, is new and material; thus, the claim for service connection for this disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A February 2004 letter provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing. March 2007 and August 2007 letters explained the evidence necessary to substantiate additional claims submitted by the Veteran, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter also informed the appellant of disability rating and effective date criteria. October and November 2008 supplemental statements of the case (SSOC) readjudicated the matters after the appellant was given the opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). The appellant has had ample opportunity to respond/supplement the record and in April 2007 indicated that he had no additional information to submit. Although the Veteran did testify at his hearing that he had received treatment at a podiatry clinic in July 2009, it was for the fitting of new shoes, and, as such, this record of current treatment is not considered to be necessary to adjudicate the claim for service connection for pes planus. He has not alleged that notice in this case was less than adequate. In sum, the Veteran has had a meaningful opportunity to participate in the development of the claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Additionally, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The RO arranged for a VA examination regarding the claims for service connection for musculoskeletal disabilities in April and August 2007. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). This VA examination report of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. Although there has been no examination regarding the claims for service connection for prostate cancer, absent any competent evidence suggesting that the Veteran's cancer is related to service, even the "low threshold" standard as to when a VA examination is necessary outlined in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) is not met. The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. In addition, certain chronic diseases, including cancer and degenerative joint disease, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. § 101(24), 106, 1110, 1131. A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the current claimed disability and the disease or injury in service. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. 1. Prostate Cancer Review of the STR's from the time that the Veteran was on active duty shows no complaint or manifestation of a prostate disorder or prostate cancer; however, a periodic examination report conducted during the 1980's (the precise date is not decipherable) includes findings that the left side of the prostate was enlarged and hard. Records of private treatment include reports that the Veteran received treatment for prostate cancer in 1986. Records show that the cancer was proven by biopsy in February 1986. In a September 2006 letter, one of the Veteran's private physicians stated that, after review of medical records that were available to her, she could not conclusively state that the prostate cancer was incurred in or aggravated by his military service. Such statement does not support the claim. On these facts, the Board finds that the claim must be denied. As reflected above, no carcinoma was shown in service, and there is no medical evidence of a malignant tumor within one year of the Veteran's separation from service, thereby precluding service connection on a presumptive basis. The Veteran testified at his hearing before the undersigned that his prostate cancer was found at an induction center on an examination conducted in connection with his military duty. However, his testimony is not supported by the medical evidence. Rather, the medical evidence shows that the prostate cancer was first demonstrated many years after active duty, with no indication that the disease is related to a period of active duty or other military service. The Board finds his statements to be incredible in light of the objective medical findings initially shown many years after service and the lack of any other support in the record that links the post-service disorder to service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) [in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole]. The absence of findings of cancer during service and in clinical treatment records for over 20 years after the Veteran's last period of active duty is also probative evidence against continuity of symptoms since service. Mense v. Derwinski, 1 Vet. App. 354 (1991). Consequently, the Board must find that the weight of the evidence is against a relationship between service and the development of prostate cancer many years later. As such, service connection must be denied. 2. Bilateral Elbow Disabilities Review of the STR's shows that the Veteran had complaints of bilateral elbow pain during service in 1953. No objective evidence of a disability was demonstrated at that time and on examination at separation from service in 1955 clinical evaluation of the upper extremities was normal. Examination in November 1962 was similarly normal. Private treatment records show that the Veteran had sustained a work related injury of the right elbow in 1986, without sequela. The Veteran was afforded an examination by VA in August 2007. At that time, no limitation of range of motion or function was found. The Veteran had complaints of discomfort of the right elbow only. The diagnosis was arthralgias of the right elbow. The examiner rendered an opinion that no elbow condition was caused by or the result of military service. Regarding the claims for service connection for a left elbow disability, it is noted that no disability of the left elbow has been demonstrated in the record during the pendency of this appeal. Following VA examination, the relevant diagnosis was arthralgia, right elbow. The Board notes that "arthralgia" is defined as joint pain. See DeLuca v. Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)). The Court has held that pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Given the absence of probative findings of elbow disability and the conclusion of the VA examiner who found no disability related to service, the Veteran's statements/testimony are outweighed by the other evidence, and service connection must be denied for the claimed elbow disability. 3. Degenerative Joint Disease of the Hips, Knees and Ankles STR's show that the Veteran had complaints of pain of the hips, knees and ankles on several occasions while on active duty. This includes complaints in 1953 and in November 1954, when the Veteran specifically complained of ankle pain after stepping off a sidewalk and twisting his right ankle. X-ray studies of the knees in 1953 and of the right ankle in 1954 showed no abnormality. On examination for separation from service in 1955, and on examination in November 1962, clinical examination of the lower extremities, excluding the feet, was normal. An examination was conducted by VA in April 2007. At that time, examination of the ankles showed them to be stable, with normal and painless range of motion. The pertinent diagnoses included mild degenerative joint disease of the bilateral hips and knees. The examiner rendered opinions that it was not at least as likely as not that the disabilities of the hips, knees or ankles were related to the pain that occurred while the Veteran was on active duty. Rather, these were considered to be more likely age related mild degenerative changes. There is no indication in the record that the Veteran had degenerative joint disease while on active duty or within one year thereof. Significantly, the April 2007 medical opinion of record does not relate the claimed disabilities to service. On the contrary, the examiner completed a thorough examination and concluded that the DJD was not related to service. The evidence is consistent with the examiner's conclusions that a continuity of symptomatology since service is lacking by virtue of the absence of complaints or findings in the post-service record until many years after service. The examiner found that the DJD is age-related, not as a result of service. The Veteran also submitted letters from David L. Kosh, MD, including dated in September 2007 and January 2009. The September 2007 letter indicates that the Veteran was disabled since October 2006 due to an accident in which he fractured his pelvis. This letter referring solely to after-service injury is not supportive of the claim. The January 2009 letter reflects that the doctor reviewed the Veteran's medical records from the 1950's. The doctor then listed the history of the Veteran's joint pain, including the ankles, and that now he had back and ankle pain. Following the doctor's examination findings, no further commentary was made as to nexus. The doctor did comment that "certainly osteoarthritis of the ankles and back can be accelerated by injuries, although one would expect that they would also worsen over time." This letter which declines to link current disability to service is also not supportive of the claim. Thus, while the Veteran had complaints of bilateral hip, knee and ankle disabilities in service, and his testimony is credible as to his experiences, the overall evidence as discussed above which fails to otherwise link the claimed disorders to service weighs against the claims. Under these circumstances, service connection must be denied. 4. Pes Planus with DJD and plantar calcaneal spur On examination for entry into active duty, first degree pes planus was noted. STR's show no complaint or manifestation related to the Veteran's preexisting pes planus and on examination for separation from service in August 1955, first degree pes planus was again noted. As the disability preexisted service, the question before the Board is one of aggravation. In this regard it is noteworthy that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition . In this case, lack of aggravation is demonstrated by establishing there was no increase in disability during service. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). The record shows no increase in the degree of the Veteran's pes planus during service. Records of treatment subsequent to service show that the Veteran as had complaints of foot pain on several occasions through the years, including complaints in 1988 at which time there were references to injuries that had occurred in 1985 and 1986. The Veteran's feet were examined by VA in April 2007 at which time the records were reviewed and an examination performed. The examiner rendered an opinion that it was not at least as likely as not that the bilateral foot condition was aggravated due to military service beyond the normal progression of the disease. In support of this opinion, the examiner stated that the findings were minimal by X-rays and on clinical examination of the feet. As the record does not show any evidence of an increase in the preexisting pes planus during service, the claim for service connection for pes planus must be denied. As to the DJD affecting the foot and the calcaneal spur, the evidence is negative for such disorders until years after service. The VA examiner in April 2007 did not find that any such claimed disorder is causally related to service in any way. In sum, the weight of the evidence is against finding that service connection is in order. 5. New and Material Evidence for Service Connection for a Low Back Disability Service connection for a low back disability was previously denied by the RO in a May 2005 rating decision. The Veteran did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been submitted such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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(a). Evidence of record at the time of the May 2005 denial of service connection for a low back disability included the STR's that showed no complaint or manifestations of a back disability. Private treatment records show that the Veteran was treated for complaints of back pain beginning in 1991 and continuing through records of treatment dated in 2003. There is no indication in any of these records that these back complaints were related to service. The evidence submitted by the Veteran in support of a reopening of his claim for service connection for a low back disability consists primarily of records of treatment many years after service that does not indicate any relationship to military service. Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). Of record are medical reports dated in 1988 that refer to back pain but are in the context of a Workers Compensation injury and subsequent claim. There is no reference to military service. As such, these records are not material. Also submitted were various letters from Associated Family Physicians, Dr. Kosh, who stated that he had reviewed the Veteran's STR's. Significantly, Dr. Kosh failed to link a current back disorder to service. As such, the listing of the Veteran's history by him is essentially duplicative of the prior evidence of record, and his letters do not tend to substantiate the claim. Consequently, these letters are not new and material evidence. It is noted that the Veteran testified at a hearing on appeal in July 2009 and while he gave sworn testimony to the effect that he believes that there is a relationship between service and his low back disability, his testimony is not sufficient to reopen the case in this situation. Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). Under these circumstances, the application to reopen the claim for service connection for a low back disability must be denied. 6. New and Material Evidence for Service Connection for Loss of Teeth Service connection for loss of teeth was previously denied by the RO in a May 1983 decision. Service connection was denied on the basis that there was no dental trauma or disease for which compensation could be considered. The claim was then referred to the VA Medical Center as a "treatment" claim. The Veteran did not appeal this determination. Service connection of dental conditions will be established under these circumstances: (a) Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in Sec. 17.161 of this chapter. (b) The rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service. When applicable, the rating activity will determine whether the condition is due to combat or other in-service trauma, or whether the Veteran was interned as a prisoner of war. (c) In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. (d) The following principles apply to dental conditions noted at entry and treated during service: (1) Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service. (2) Teeth noted as filled at entry will be service-connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service. (3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service-connected. (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service- connected if extraction was required after 180 days or more of active service. (5) Teeth noted at entry as non- restorable will not be service-connected, regardless of treatment during service. (6) Teeth noted as missing at entry will not be service connected, regardless of treatment during service. (e) The following will not be considered service-connected for treatment purposes: (1) Calculus; (2) Acute periodontal disease; (3) Third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) Impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. (f) Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381 (2009). Outpatient dental treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C. 1712(b) and 38 CFR 17.93 to the extent prescribed and in accordance with the applicable classification and provisions set forth in this section: (a) Class I. Those having a service-connected compensable dental disability or condition, may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function. There is no time limitation for making application for treatment and no restriction as to the number of repeat episodes of treatment. (b) Class II. (1)(i) Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place after September 30, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (A) They served on active duty during the Persian Gulf War and were discharged or released, under conditions other than dishonorable, from a period of active military, naval, or air service of not less than 180 days, or they were discharged or released under conditions other than dishonorable, from any other period of active military, naval, or air service of not less than 180 days; (B) Application for treatment is made within 180 days after such discharge or release. (C) The certificate of discharge or release does not bear a certification that the Veteran was provided, within the 90-day period immediately before such discharge or release, a complete dental examination (including dental X-rays) and all appropriate dental treatment indicated by the examination to be needed, and (D) Department of Veterans Affairs dental examination is completed within six months after discharge or release, unless delayed through no fault of the Veteran. (ii) Those Veterans discharged from their final period of service after August 12, 1981, who had reentered active military service within 90 days after the date of a discharge or release from a prior period of active military service, may apply for treatment of service-connected noncompensable dental conditions relating to any such periods of service within 90 days from the date of their final discharge or release. (iii) If a disqualifying discharge or release has been corrected by competent authority, application may be made within 90 days after the date of correction. (2)(i) Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place before October 1, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (A) They were discharged or released, under conditions other than dishonorable, from a period of active military, naval or air service of not less than 180 days. (B) Application for treatment is made within one year after such discharge or release. (C) Department of Veterans Affairs dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the Veteran. (ii) Those Veterans discharged from their final period of service before August 13, 1981, who had reentered active military service within one year from the date of a prior discharge or release, may apply for treatment of service- connected noncompensable dental conditions relating to any such prior periods of service within one year of their final discharge or release. (iii) If a disqualifying discharge or release has been corrected by competent authority, application may be made within one year after the date of correction. (c) Class II (a). Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service- connected noncompensable condition or disability. (d) Class II(b). Those having a service-connected noncompensable dental condition or disability and who had been detained or interned as prisoners of war for a period of less than 90 days may be authorized any treatment as reasonably necessary for the correction of such service- connected dental condition or disability. (e) Class II(c). Those who were prisoners of war for 90 days or more, as determined by the concerned military service department, may be authorized any needed dental treatment. (f) Class IIR (Retroactive). Any Veteran who had made prior application for and received dental treatment from the Department of Veterans Affairs for noncompensable dental conditions, but was denied replacement of missing teeth which were lost during any period of service prior to his/her last period of service may be authorized such previously denied benefits under the following conditions: (1) Application for such retroactive benefits is made within one year of April 5, 1983. (2) Existing Department of Veterans Affairs records reflect the prior denial of the claim. All Class IIR (Retroactive) treatment authorized will be completed on a fee basis status. (g) Class III. Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability. (h) Class IV. Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability may be authorized any needed dental treatment. (i) Class V. A Veteran who is participating in a rehabilitation program under 38 U.S.C. chapter 31 may be authorized such dental services as are professionally determined necessary for any of the reasons enumerated in Sec. 17.47(g). (j) Class VI. Any Veterans scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C. may receive outpatient dental care which is medically necessary, i.e., is for dental condition clinically determined to be complicating a medical condition currently under treatment. 38 C.F.R. § 17.161 (2009). The Veteran is actually claiming service connection for a dental disorder that would be rated as noncompensable under the rating schedule. With respect to service connection for missing teeth, the regulations governing dental claims make a fundamental distinction between "replaceable missing teeth," see 38 C.F.R. § 3.381(a), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). In his testimony and statements, there is no allegation of dental trauma in this case. As consistent with the previous denial, the record is unchanged from the prior record. The testimony and statements by the Veteran are duplicative or redundant of what was previously presented. Under these circumstances, the claim may not be reopened. 7. New and Material Evidence for Service Connection for Hearing Loss Service connection for bilateral hearing loss was denied by the RO in May 1983 without appeal by the Veteran. At that time, the basis for the denial was that there was no evidence that the Veteran had a bilateral hearing loss. As noted, it must be determined whether new and material evidence has been submitted to reopen this claim. Evidence of record at the time of the 1983 denial includes the STR's. Review of these shows that the Veteran was afforded an audiometric evaluation in November 1962 that, with conversion to ISO-ANSI standards, showed pure tone thresholds of 30 dB at 3000 hertz and 35 dB at 6000 hertz. (Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI)). Although the RO determined that this did not represent a hearing loss, the Court has held that "the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, evidence submitted subsequent to the 1983 denial includes audiometric findings that document a bilateral hearing loss. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record shows hearing loss to some exent during service and a post-service hearing loss. At his hearing, the Veteran provided further detail regarding his hearing loss claim. "Material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). Given the additions to the record since the last denial, the Board finds that new and material evidence has been received. Under these circumstances, the Board finds that the application to reopen the claim of service connection for bilateral hearing loss is reopened and, to this extent, the appeal is allowed. ORDER Service connection for prostate cancer is denied. Service connection for bilateral elbow disabilities is denied. Service connection for degenerative joint disease of both hips is denied. Service connection for degenerative joint disease of both knees is denied. Service connection for degenerative joint disease of both ankles is denied. Service connection for pes planus with DJD and plantar calcaneal spur is denied. New and material evidence having not been received, the claim of service connection for a low back disability remains denied. New and material evidence having been received, the claim of service connection for loss of teeth remains denied. New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened. To this extent, the claim is allowed. REMAND Having decided that the claim for service connection for bilateral hearing loss is reopened, as noted, all the evidence on file must now be considered. In this case, it is determined that further development is warranted. It is found that an audiometric evaluation is warranted for this issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for service connection for erectile dysfunction, it is noted that he did have some complaints of this problem while on active duty in 1952. In a September 2006 statement, his private physician raised some question as to whether there is a possible relationship between current symptoms and those demonstrated while on active duty. As such, it is believed that an examination for this disability is warranted as well. Id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of his bilateral hearing loss. All indicated studies, including audiometric evaluations should be performed. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent of more) that the hearing loss is related to service. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. The RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of his erectile dysfunction. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent of more) that the erectile dysfunction is related to symptoms noted during service. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 3. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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. 2009). ______________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs