Citation Nr: 1106738 Decision Date: 02/18/11 Archive Date: 02/28/11 DOCKET NO. 06-36 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus type II. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a stomach disorder, to include pancreatitis, cholelithiasis, and diverticulosis. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. McGuire, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971. He also had additional periods of duty in the Army Reserve and the Army National Guard from March 1971 to June 1998. This matter is before the Board of Veterans' Appeals (Board) from July 2006, March 2007, January 2008, and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2008, the Veteran submitted a Notice of Disagreement with the denial of an increased rating for bilateral hearing loss in January 2008, and a Statement of the Case was issued in May 2008. The Board notes that the Veteran did not file a Substantive Appeal after the issuance of the Statement of the Case. However, inasmuch as VA has taken actions to indicate to the appellant that the present issue is on appeal (by including the issue in a June 2008 Supplemental Statement of the Case and accepting testimony at a Board hearing), VA has waived any objection it might have had to the adequacy of the appeal with respect to the matter. See Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003). In October 2009, the Veteran participated in a Travel Board hearing before the undersigned. A transcript is of record and has been reviewed. The Veteran submitted additional evidence consisting of a private medical examination and a buddy statement at the Board hearing. He also submitted a waiver of the right to initial agency of original jurisdiction (AOJ) consideration of this evidence. C.F.R. §§ 19.9, 20.1304(c) (2010). The Board notes that additional evidence has been submitted without a waiver of AOJ consideration. However, two of the newly submitted letters by private physicians were already of record. Also of record were the Veteran's May 2009 contentions that diabetes mellitus and a stomach disorder occurred during his summer camp with the Texas National Guard from 1996 through 1998. Although additional private treatment records were not previously of record, these records indicate that the Veteran currently has diabetes mellitus and a stomach disorder, a fact which has been well established and which does not have any further tendency to aid in substantiating the Veteran's claims. Accordingly, there is no need to refer this matter to the AOJ because none of this evidence has a bearing on the appellate issues. See 38 C.F.R. § 20.1304(c) (2010). In February 2004, the Board determined that new and material evidence had not been submitted and did not reopen claims of entitlement to service connection for a stomach disorder and diabetes mellitus. The Veteran's Motion for Reconsideration of the Board's decision was denied in February 2006; thus, the February 2004 Board decision became final. After subsequent claims to reopen, the RO determined that new and material evidence had not been submitted in July 2006 and March 2007 rating decisions. In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108 and 7104 establishes a legal duty for the Board to consider new and material issues regardless of the RO's actions. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. As such, the Board must make its own determination as to whether new and material evidence has been presented to reopen these claims. The issues of entitlement to an increased rating for bilateral hearing loss and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a February 2004 decision, the Board declined to reopen previously denied claims of service connection for diabetes mellitus and a stomach disorder, to include diverticulitis, pancreatitis, and cholelithiasis. 2. Evidence submitted after February 2004 includes evidence that is not cumulative or redundant of the evidence previously of record, but the evidence does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes mellitus and a stomach disorder. CONCLUSIONS OF LAW 1. The February 2004 Board decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2003). 2. The Veteran has not submitted new and material evidence that warrants reopening his claim of entitlement to service connection for diabetes mellitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. The Veteran has not submitted new and material evidence that warrants reopening his claim of entitlement to service connection for a stomach disorder, to include diverticulitis, pancreatitis, and cholelithiasis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(a)-(c). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, notice letters provided to the appellant in May 2006 and September 2006 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claims were previously denied. These letters advised the Veteran of the delegation of responsibility between VA and the Veteran in procuring evidence relevant to the claim. The letters also apprised the Veteran of the criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006). Consequently, the Board finds that adequate notice has been provided. The scope of VA's duty to assist will depend on the facts and circumstances of an individual case, but typically, the duty to assist requires VA to obtain relevant records from federal agencies, to make reasonable efforts to obtain relevant records not in the custody of federal agencies, and in certain circumstances, to provide a medical examination or obtain a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has satisfied VA's duty to assist. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. II. New and Material Evidence Legal Criteria Generally, a claim which has been denied in a final rating or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104, 7105(c). 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 Secretary shall reopen the claim and review the former disposition of the claim. Under 38 C.F.R. § 3.156(a), 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. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence on 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post- service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, the law provides that, where a Veteran served ninety days or more of active military service, and certain chronic diseases, including diabetes mellitus and certain stomach disorders, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (INACDUTRA) during which the Veteran was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). Analysis The Veteran's initial claims for service connection for diabetes mellitus and a stomach disorder were denied in a September 1998 rating decision. The Veteran perfected an appeal of that decision, and in November 2000, the Board denied the claims for service connection. The RO did not reopen the claims in July 2001, and the Veteran again appealed the decision. The Board, in a February 2004 decision, determined that new and material evidence had not been submitted to reopen the claims. The record shows that the Veteran filed a Motion for Reconsideration of the Board's decision in September 2005, which the Chairman of the Board denied in February 2006. Thus, the Board's February 2004 decision became final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In March 2006, the Veteran filed to reopen his diabetes mellitus claim; the RO declined to reopen the claim in a July 2006 rating decision. The Veteran filed a "Notice of Disagreement" with regard to his stomach disorder in August 2006; the RO considered this a claim to reopen, as no claim had been pending at the time of the Veteran's filing. The RO declined to reopen the claim in a March 2007 rating decision. The appeals of these rating decisions are properly before the Board. The evidence of record at the time of the February 2004 Board decision included private treatment records from Shannon West Texas Memorial Hospital; service treatment records; treatment records from the Veteran's reserve service; service personnel records; VA medical center (VAMC) treatment records; and the Veteran's statements, including those presented during Board hearings in October 1999 and October 2003. Service treatment records from the Veteran's period of active duty from March 1968 to March 1971 did not show diagnoses of diabetes mellitus or any stomach disorder. In August 1970, the Veteran sought treatment for nausea and diarrhea on one occasion, but there was no resulting diagnosis. The Veteran's February 1971 separation examination report revealed a normal abdomen, and urinalysis was negative for sugar. Treatment records from the Veteran's reserve service show that the he reported a history of stomach trouble. In a report of medical history prepared in conjunction with an over-40 examination in June 1997, the Veteran reported a history of diverticulosis. The medical examiner noted a normal abdomen, and urinalysis was negative for sugar. It appears that the Veteran was referred for additional cardiovascular screening, and fasting blood sugar, reported to be 129 mg/dL, was considered a cardiovascular risk factor. However, reserve treatment records are negative for a diagnosis of diabetes mellitus. Private treatment records from Shannon West Texas Memorial Hospital show diagnoses of and treatment for pancreatitis beginning in July 1996. The evidence also contains a diagnosis of cholelithiasis; the Veteran underwent a cholecystectomy in January 1998. Also in January 1998, the Veteran reported a history of diabetes mellitus. In a May 1998 letter, Dr. J.S. stated that the Veteran was being treated for insulin dependent diabetes mellitus which had developed over the past nine months. He also stated that the Veteran had pancreatitis. He did not recommend that the Veteran participate in summer reserve duties. VAMC evidence beginning in August 1998 through August 2002 revealed intermittent flares of diverticulosis and diabetes mellitus type II treated with insulin. The Veteran underwent a VA examination for diabetes in May 2001. The examiner diagnosed diabetes mellitus type II; no opinion was provided. In a February 2001 submission, the Veteran asserted that service connection should be established because sugar was found in his blood and he was hospitalized for his gallbladder and a pancreatic pseudocyst while he was a member of the Texas National Guard. He also stated that his diabetes ultimately led to pancreatitis. The Board determined that new and material evidence had not been presented to reopen the claims for the following reasons: the new evidence did not establish that the Veteran incurred either diabetes or a stomach disorder between 1968 and 1971 or within any presumptive period thereafter; treatment records from the Veteran's reserve service noted histories of diabetes and diverticulitis but did not establish that the Veteran was disabled from them during any period of ACDUTRA; the evidence also did not establish that the Veteran was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA; the presumptions provided for under 38 C.F.R. §§ 3.307 and 3.309 with respect to diabetes mellitus and certain stomach disorders applied only to periods of active military service, and thus, there was no applicable presumptive period following any period of ACDUTRA or INACDUTRA; and there was no evidence which related any of the diagnoses to the Veteran's military service. Evidence received subsequent to the Board's February 2004 decision included duplicates of previously submitted private treatment records and reserve service records; additional private treatment records from Shannon Clinic and West Texas Medical Associates; additional VAMC treatment notes; a nexus opinion by Dr. C.C. dated in October 2009; the transcript of an October 2009 Travel Board hearing; and additional lay evidence, including statements submitted by the Veteran. The private treatment records show continued treatment for diabetes mellitus and a stomach disorder. In a March 2006 letter, Dr. J.S. of the Shannon Clinic stated that the Veteran was diagnosed with diabetes mellitus type II and was treated for acute cholecystitis and pancreatitis in October 1997. The Veteran submitted lay statements asserting that his diabetes mellitus and stomach disorder began during Texas National Guard summer camp between 1996 and 1998. In a February 2008 statement, the Veteran claimed that hypertension and pain caused his diabetes mellitus. During the Board hearing in October 2009, the Veteran testified that National Guard physicians informed him of sugar in his blood in 1998. He repeated his assertions that diabetes and a stomach disorder were diagnosed during training in 1997 or 1998. In an October 2009 report, Dr. C.C. of American Medical Disability Consultants provided a nexus opinion with regard to the Veteran's claims. He stated that he thoroughly reviewed all of the provided medical records and service treatment records, and he examined the Veteran. He stated that "diabetes and pancreatitis are more than likely related to military service due to the fact that both of these conditions were diagnosed and treated during active service between 1997 and 1998." See Dr. C.C. report, pp. 6. The Board has considered this and other evidence of record. Here, the Veteran has articulated a new theory of entitlement to service connection for diabetes mellitus, in essence alleging that diabetes may be due to or aggravated by a service-connected disability. In Ashford v. Brown, 10 Vet. App. 120 (1997), the Court held that when a Veteran attempts to reopen a claim by bringing a new etiological theory for the causation of his disease than that which was previously addressed in the earlier final denial, such new theory of causation does not itself constitute a new claim, obviating the necessity of presenting new and material evidence for that claim. Thus, the Veteran's new theory of secondary service connection is not a basis for reopening his claim of entitlement to service connection for diabetes mellitus. The Board must therefore proceed to analyze whether new and material evidence has been submitted since the final Board decision in February 2004. The additional medical evidence submitted since the Board's February 2004 decision is new; however, it is cumulative of the evidence previously of record in that it simply shows that the Veteran was diagnosed with diabetes mellitus and a stomach disorder in 1997 or 1998 and has been treated for the conditions since that time. The Board acknowledges that the new evidence contains a nexus opinion by Dr. C.C.. However, the Board finds that this opinion does not raise a reasonable possibility of substantiating the claim. While Dr. C.C. provided a positive nexus, his only rationale was that diabetes and pancreatitis were diagnosed and treated during active service between 1997 and 1998. It is true that the Veteran's reserve duty ended in June 1998. However, the physician's assertion that the Veteran was in active duty status in 1997 and 1998 is incorrect. Personnel records show that the Veteran had one period of ACDUTRA from June 7, 1997 through June 21, 1997 and had various periods of INACDUTRA in 1997. The Veteran was not in ACDUTRA or INACDUTRA status during the time when he was diagnosed with diabetes mellitus and treated for a stomach disorder. Dr. C.C.'s opinion, and indeed the entirety of the newly submitted evidence, fails to establish that the Veteran was disabled from diabetes or a stomach disorder during any period of ACDUTRA or was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. Since Dr. C.C.'s opinion is based on a misinterpretation of the facts regarding the character of the Veteran's service, it does not raise a reasonable possibility of substantiating the claims. While the Veteran's statements linking his claimed disabilities to service are acknowledged, to the extent that he is attempting to present evidence of etiology or medical causation of disease or illness, he is not competent since it has not been shown that he has the necessary medical skills and training to offer opinions on such medical questions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The Veteran's contentions in this regard were previously of record, and his current contentions, being the same, are not new and material to his claim. ORDER New and material evidence having not been presented, the claim for service connection for diabetes mellitus type II is not reopened; the appeal is denied. New and material evidence having not been presented, the claim for service connection for a stomach disorder, to include pancreatitis, cholelithiasis, and diverticulosis, is not reopened; the appeal is denied. REMAND In July 2009, the RO provided a VA audiological examination in relation to the Veteran's TDIU claim. As this examination report has a direct bearing on the issue of entitlement to an increased rating for the Veteran's service-connected bilateral hearing loss, the RO should have considered this evidence within the context of the Veteran's increased rating claim, which it has not. Because this evidence has not been waived by the Veteran or his representative, a remand is necessary in order for the RO to reajudicate the Veteran's claim of entitlement to an increased rating for bilateral hearing loss. In doing so, the RO should take into consideration all of the pertinent evidence of record, including, but not limited to, the findings of the July 2009 VA examination. 38 C.F.R. § 20.1304(c). The Veteran's claims file indicates that he was most recently employed as a school crossing guard and that he ceased work in March 2009. The Board notes that his service-connected disabilities presently include coronary artery disease (CAD) (currently rated 60 percent disabling), hypertension (currently rated 10 percent disabling), bilateral hearing loss (currently rated 10 percent disabling), and tinnitus (currently rated 10 percent disabling). The Veteran's service-connected disabilities together produce a combined rating of 70 percent. He has therefore met the regulatory threshold for eligibility to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). The Veteran underwent two VA examinations in July 2009 to address his TDIU claim. However, the VA examiners failed to provide an opinion as to the impact of the Veteran's service-connected disabilities, as a whole, on his employability. In the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). While one July 2009 VA examiner stated that the Veteran's hearing loss and tinnitus had significant effects on the Veteran's occupation, the examiners did not provide an explicit opinion as to whether the Veteran's multiple service-connected disabilities, as a whole, would be sufficient to preclude gainful employment. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for an increased rating for bilateral hearing loss. 2. The Veteran should be afforded an appropriate medical examination to ascertain whether his service-connected disabilities, as a whole, would preclude gainful employment. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether the Veteran's service-connected disabilities, as a whole, more likely than not (i.e., probably greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), preclude gainful employment. A detailed rationale would be of considerable assistance to the Board. Please send the claims folder to the examiner for review in conjunction with the examination. 3. When the above development has been completed, the RO must readjudicate the issues of entitlement to a TDIU and entitlement to an increased rating for bilateral hearing loss, including consideration of the July 2009 VA audiological examination. If the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs