Citation Nr: 1237440 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-31 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure has been submitted. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for coronary artery disease. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for rash. 6. Entitlement to service connection for eye disorder. 7. Entitlement to service connection for tingling in upper extremities. 8. Entitlement to service connection for tingling in lower extremities. REPRESENTATION Appellant represented by: Heather E. Vanhoose, Jan Dils Attorneys At Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2008, October 2009, August 2010 and January 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for claims on appeal and a higher evaluation for hearing loss. In August 2012, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceeding is of record. Issues withdrawn The Veteran withdrew his claim for an initial compensable evaluation for a scar on the left wrist in a January 2012 letter submitted by his attorney. The Veteran also withdrew his claim for entitlement to service connection for lumbar spine disorder in an August 2010 letter submitted by his attorney. As these letters met the requirements for withdrawal of an appeal, the claims are deemed to have been withdrawn. See 38 C.F.R. § 20.204(a),(b) (2012). The issues of entitlement to service connection for hypertension, eye disorder, rash, tingling in upper and lower extremities, and an increased evaluation for bilateral hearing loss 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. The Veteran's claim of service connection for diabetes mellitus was denied in an unappealed January 1970 decision of the RO. 2. The evidence received since the January 1970 decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. 3. Affording the Veteran the benefit of the doubt, based on the Veteran's representations, deck logs and articles, he set foot on the landmass of the Republic of Vietnam during his period of service from July 1965 to August 1968. 4. The competent medical evidence of record establishes that the Veteran has a current diagnosis of diabetes mellitus, Type II. 5. The competent medical evidence of record establishes that the Veteran has a current diagnosis of coronary artery disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for diabetes mellitus. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.159, 3.312 (2012). 2. Diabetes mellitus, type II, may be presumed to have been incurred in or aggravated by service. See 38 U.S.C.A. § 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. Coronary heart disease may be presumed to have been incurred in or aggravated by service. See 38 U.S.C.A. § 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim. Furthermore, the Board is granting the Veteran's claims for entitlement to service connection for diabetes mellitus and coronary artery disease. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. I. New and Material Evidence claims A. Relevant law and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2011). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court of Appeals for Veterans Claims (the Court) has recently stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Whether new and material evidence has been submitted to reopen a claim for service-connection for diabetes mellitus. In January 1970, the Veteran's claim for entitlement to service connection for diabetes mellitus was denied by the RO. The Veteran did not appeal this decision, and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). In essence, the RO denied the Veteran's claim for diabetes mellitus because there was no evidence of a diagnosis of diabetes mellitus during military service, and there was no evidence of a current diagnosis of diabetes mellitus. Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted [i.e. after January 1970] evidence bears directly and substantially upon this matter. Since January 1970, the Veteran has submitted treatment records showing that he currently has a diagnosis for diabetes mellitus, type II. See Dr. B. examination report dated in December 2008. Therefore, the evidence submitted now shows a current diagnosis of diabetes mellitus. As to disease or injury in service, the Veteran has submitted several documents stating that he set foot in Vietnam while serving on the U.S.S. Stickell off the coast of Vietnam during the Vietnam War. See Veteran's statement dated in March 2006; see also Veteran's statement dated in April 2006. He also testified that he was a coxswain and would drive motor whaleboats ashore for supplies and mail. See Video Board hearing conducted in August 2012. The Veteran's statements that he set foot in Vietnam raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus on a presumptive basis. Therefore, the Board finds that this evidence constitutes new and material evidence as to the issue on appeal. As noted above, for the sole purpose of establishing whether new and material evidence has been submitted, the credibility of the medical opinions, although not their weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claim for service connection. See Justus, supra. This new evidence relates to unestablished facts necessary to substantiate the Veteran's diabetes mellitus claim, and presents a reasonable possibility of substantiating it. See 38 C.F.R. § 3.156 (2011). Accordingly, the Board finds that there is sufficient new and material evidence to reopen the Veteran's claim of entitlement to service connection for diabetes mellitus. II. Service Connection Claims A. Relevant law and regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2011). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) . Certain diseases, to include diabetes mellitus, type II, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). As there is no evidence or claim that the Veteran was diagnosed with diabetes mellitus, Type II, within one year of service the above provision is not applicable. Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2011); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). Such diseases include, among others, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and ischemic heart disease (which includes coronary artery disease). 38 C.F.R. § 3.309(e) (2012). The Board notes, notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). In order to establish direct service connection for a disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Accordingly, the Board will consider service connection on a presumptive and direct basis. B. Entitlement to service connection for coronary artery disease and diabetes mellitus, type II. Since the facts, law and analysis are similar, the Board will discuss these issues together. The Veteran contends that he has diabetes mellitus, Type II and coronary artery disease as a result of in-service exposure to herbicides. Specifically, the Veteran asserts that while stationed aboard U.S.S. Stickell, the Veteran took trips to Vietnam for supplies and mail. On those trips, he set foot in Vietnam and was exposed to herbicides. Initially, the Board notes that the Veteran has a current diagnosis of diabetes mellitus, Type II and coronary artery disease, and that such disabilities appear to have manifested to a compensable degree. The crucial inquiry, therefore, is whether the Veteran's diabetes mellitus, Type II, and coronary artery disease are related to herbicide exposure or any other incident of service. The Board concludes it may be presumed that they do. Initially, the Board notes that the RO attempted to confirm whether the Veteran served on the land or inland waterways of Vietnam. The RO noted that his personnel records showed that he served in the Navy and was assigned to the U.S.S. Stickell from November 1965 to June 1968. These records also showed that the U.S.S. Stickell departed Newport for duty in the South China Sea. The ship returned to Newport in August 1966 but there was no specific information in his personnel records to show that the U.S.S. Stickell ever docked off the shores of the Republic of Vietnam. Deck logs were obtained from the National Archives. The logs noted that the Veteran was 5,000 feet from shore but showed no indication that anyone went ashore. In support of his claim, the Veteran submitted statements explaining how he served in a motor whaleboat landing party which landed on the beaches of Vietnam to pick-up surplus. The Veteran also submitted internet article showing that the U.S.S. Stickell served in the Tonkin Gulf. During the Board hearing, the Veteran testified that he served as a coxswain and steered motor whale boats onto beaches in Vietnam no more than 50 times. He explained that he never left his boat on the beach alone but did set foot in Vietnam. Specifically, he stated that the sternman, the bowman and himself could not leave the boat and had to keep the boat running and ready to leave. The Board notes that the Veteran's statements have been consistent throughout his appeal, and therefore the Board finds this statements regarding setting foot in Vietnam to be credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). His statements are not contracted by the evidence in the file. His DD 214 shows that his specialty during the military was Boatswain's Mate, basic. The Veteran explained during the hearing that his duties included being in charge of the paint locker and coxswain of the motor whaleboats. There is clear evidence that the Veteran served in the waters offshore the Republic of Vietnam for an extended period of time. Based on the Veteran's consistent statements and testimony, the Board affords the Veteran the benefit of the doubt that he set foot on the Republic of Vietnam on more than one occasion by serving off shore of Vietnam. As such, herbicide exposure, including Agent Orange, may be presumed. Therefore, as in-service exposure to herbicides in the Republic of Vietnam during the applicable presumptive period has been conceded and the Veteran has both diabetes mellitus, Type II, and coronary artery disease that have manifested to a compensable degree, the Board concludes the Veteran is entitled to a grant of service connection for his diabetes mellitus, Type II, and coronary artery disease on a presumptive basis. 38 C.F.R. § 3.309(e). Therefore, analysis as to whether direct service connection is warranted is not necessary. ORDER As new and material evidence has been received, the application to reopen the claim of service connection for diabetes mellitus is granted. Entitlement to service connection for diabetes mellitus, Type II, is granted. Entitlement to service connection for coronary artery disease is granted. REMAND The Veteran is seeking entitlement to an increased evaluation for bilateral hearing loss, and service connection for hypertension, eye disorder, rash and tingling in bilateral upper and lower extremities. Hearing loss As noted above, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). In this case, the Veteran underwent a VA examination for his bilateral hearing loss in June 2010. The Board notes, however, that during the August 2012 Board hearing, the Veteran specifically testified that his hearing loss had worsened since this June 2010 examination. In any case, the United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In light of the Veteran's contentions, the claim is remanded in order to afford the Veteran a VA audio examination to determine the current severity of his bilateral hearing loss disability. Eye disorder, tingling in extremities, and rash The Veteran is now service-connected for diabetes mellitus, type II, and he asserts that this disability caused or aggravated an eye disorder and tingling in his bilateral upper and lower extremities. He is also claiming service connection for hypertension and a rash, but it is unclear whether he is claiming that these are secondary to his diabetes mellitus or directly related to service. In any event, the Board concludes that VA examinations to determine the nature and etiology of the Veteran's eye disorder, rash and tingling in his bilateral upper and lower extremities are warranted. Records In addition, VA has an obligation to associate all relevant records with the claims file of a veteran, and a heightened duty when it comes to obtaining records in the possession of another Federal Agency. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran has testified at an RO hearing and showed documentation that he is receiving disability benefits from the Social Security Administration (SSA), due to his several disabilities (numbness in his leg is mentioned in the SSA decision). There is no indication in the claims file that the records in the possession of SSA have been requested or obtained. Where there is actual notice to VA that the Veteran is receiving disability benefits from the SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon where the identified records have a reasonable possibility of assisting in substantiation of the Veteran's claim. But see, Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). Given the evidence of record that the Veteran is receiving SSA benefits, the Board concludes that an effort should be made to seek those records. In addition, the RO/AMC should also take this opportunity to obtain any recent VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records from all applicable VA medical facilities. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Request all available records concerning the Veteran from SSA. All records obtained or any response received should be associated with the claims file. If these records are unavailable, this should be noted and explained in the claims file. 3. After the above evidence is obtained, to the extent available, schedule the Veteran for a VA audiological examination to ascertain the current severity of the Veteran's bilateral hearing loss. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. 4. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examination for his claimed hypertension. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer the following opinions: 1. Is it at least as likely as not that the Veteran's hypertension had its onset during his military service? 2. Is it at least as likely as not that the Veteran's hypertension is otherwise related to service, to include by exposure to herbicides therein? 3. Is it at least as likely as not that his hypertension was caused or aggravated by his service-connected diabetes mellitus and/or coronary artery disease? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 5. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examination for his claimed rash. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer the following opinions: 1. Is it at least as likely as not that the Veteran's rash, if currently diagnosed, had its onset during his military service? 2. Is it at least as likely as not that the Veteran's rash is otherwise related to service, to include exposure to herbicides therein? 3. Is it at least as likely as not that his rash was caused or aggravated by his service-connected diabetes mellitus and/or coronary artery disease? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 6. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examinations for his claimed tingling in bilateral upper and lower extremities and eye disorder. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to the most likely source of the Veteran's complaints, to include offering an opinion as to whether any diagnosed tingling in bilateral upper or lower extremities and eye disorder are caused or aggravated by his service-connected diabetes mellitus and/or coronary artery disease. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 7. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his attorney, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2011). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs