Citation Nr: 1334287	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-23 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for Type II Diabetes Mellitus.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for Addison's disease.

4.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for coronary artery disease (CAD).

5.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Veteran represented by:	Michael C. Angel, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from April 1965 to July 1967.

He appealed to the Board of Veterans' Appeals (Board/BVA) from July 2009 and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board sees that the RO adjudicated the Addison's disease and CAD claims on their underlying merits.  But a review of the record reveals the RO already previously had denied service connection for these disabilities in an unappealed May 1998 rating decision that since has become a final and binding determination.  See generally 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2013) (the regulations outlining the procedures for appealing unfavorable RO determinations to the Board and the finality of decisions not timely appealed).  Finally-decided claims can only be reopened with the presentation of new and material evidence.  See generally 38 C.F.R. § 3.156 (2013); Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)).  So this is the threshold preliminary determination that must be made concerning these claims.  This initial determination affects the Board's jurisdiction to adjudicate these claims on their underlying merits.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  If there is not 

this required evidence, that is where the analysis of these claims must end, as further consideration of them is neither required nor permitted.  See Barnett, 83 F.3d at 1383-4.  McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).  See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); VAOPGCPREC 05-92 (March 4, 1992).  But a finding of new and material evidence since the prior final and binding decision denying these claims would require the reopening of these claims and readjudication of them on their underlying merits.  So this will be the method of analysis of these claims.

These preliminary issues of whether new and material evidence sufficient to reopen these claims of entitlement to service connection for Addison's disease and CAD, and as concerning the additional claim of entitlement to service connection for COPD, are addressed in the REMAND portion of this decision below.  The REMAND of these claims to the RO will be via the Appeals Management Center (AMC) in Washington, DC.  However, the Board instead is going ahead and deciding the remaining claims for service connection for Type II Diabetes Mellitus and bilateral hearing loss.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam Era.

2.  His Type II Diabetes Mellitus is presumptively the result of that service in Vietnam - in particular, his presumed consequent exposure to herbicides.

3.  His bilateral hearing loss, however, was not present during his service or even for many ensuing years and is not otherwise shown to be related or attributable to his service.



CONCLUSIONS OF LAW

1.  His Type II Diabetes Mellitus was presumptively incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).

2.  But it is not also shown that his bilateral hearing loss is the result of disease or injury incurred in or aggravated by his service or that it may be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and its implementing regulations impose obligations on VA to provide claimants with notice and assistance upon receipt of a complete or substantially complete application for benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Regarding the claim for Type II (adult-onset) Diabetes Mellitus, since the Board is granting this claim in full, there is no need to discuss whether there has been compliance with these notice-and-duty-to-assist obligations - at least not as concerning this claim.  This is because, even were the Board to assume for the sake of argument there has not been, this would be inconsequential and therefore at most amount to nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


As concerning the claim of entitlement to service connection for bilateral hearing loss, the notice requirements of the VCAA require VA to notify the claimant of the information and evidence not of record that is necessary to substantiate and complete the claim, including apprising him of the subset of the necessary information or evidence, if any, he is to provide versus the subset of the necessary information or evidence, if any, VA will attempt to obtain on his behalf.  The so-called "fourth element" of the notice requirement requesting that he also provide any evidence in his possession pertaining to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The U. S. Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim.  Those five elements are:  (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.  So he must be apprised of all five of these elements, therefore, even of the "downstream" disability rating and effective date elements in the event service connection is granted.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, however, for whatever reason it was not or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to rectify ("cure") the timing defect in the provision of the notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 


In a timely letter in April 2009, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim of entitlement to service connection, as well as of the information and evidence he needed to provide in comparison to that which VA would obtain for him.  He was also advised regarding a "downstream" disability rating and effective date.

With regards to the duty to assist him with his claim, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file for consideration includes his service records, post-service VA clinical records, private medical records, his written statements, and his hearing testimony.  He was also provided a VA audiologic examination in June 2009.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA opinion obtained in this case is adequate.  The June 2009 VA examiner considered all of the pertinent evidence of record, including the Veteran's statements, so the history he recounted, and most importantly provided explanatory rationale for the opinion stated.  Accordingly, the Board finds that VA's duty to assist has been met with respect to obtaining a VA examination and opinion on the issue of entitlement to service connection for bilateral hearing loss.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

Standard of Review 

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record, so both the relevant medical and lay evidence.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Governing Statutes, Regulations, and Case Law

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If on the other hand a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally a showing of continuity of symptoms after service is required to support the claim.  38 C.F.R. § 3.303(b).  Showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is an alternative means of linking the currently-claimed disability to service, but is only available for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran currently has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently-claimed disability, which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Diabetes Mellitus and, as a type of organic disease of the nervous system, sensorineural hearing loss will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  Despite the holding in Walker regarding hearing loss in general not being considered a chronic condition, per se, and therefore not subject to the continuity of symptomatology pleading-and-proof exception provided by 38 C.F.R. § 3.303(b) to alternatively establish the required causal link between current hearing loss and service, sensorineural hearing loss is subject to this exception.  The Veterans Benefits Administration 's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.FR 3.309(a)."  M21-1MR III.iv.4.B.12.a.

Also specific to claims for service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  But before service connection may be granted for hearing loss, it must be of a particular level of severity.  For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.


That said, to establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation or even during the one-year presumptive grace period after service allowing for sensorineural hearing loss, as an organic disease of the nervous system, to initially manifest to a compensable degree (meaning to at least 10-percent disabling), although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385 ), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. at 159.

Consider also that a Veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975 (Vietnam Era), is presumed to have been exposed to herbicides.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).  For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically:  
2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam Era.


"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307.  The presumption requires that a Veteran actually stepped foot on land in Vietnam or served in the inland waterways, not just on a ship off the coast or shore of Vietnam (brown water versus blue water).  Haas v. Peake, 525 F.3d 1168 (2008) (upholding the interpretation of governing law that service in the offshore waters of Vietnam without temporary duty or visitation on land, even where the claimant was the recipient of the Vietnam Service Medal (VSM), was insufficient to warrant application of the presumption of herbicide exposure).  See also VAOPGCPREC 27-97.

This opinion of the VA General Counsel interpreted that service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975, and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii).  VAOPGCPREC 27-97.  A Veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service.  Id.  Since issuance of that General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases.  66 Fed. Reg. 23166 (May 8, 2001).

Despite the foregoing, it has been established that some offshore U.S. Navy and Coast Guard ships also operated temporarily on Vietnam's inland waterways or docked to the shore; and, certain ships operated primarily on the inland waterways rather than offshore.  Veterans who served aboard these ships qualify for the presumption of herbicide exposure.  Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" navy because they operated on the blue-colored waters of the open ocean.  Although some Blue Water Navy destroyers were involved with enemy interdiction, the majority of those operations were conducted by smaller vessels based along the coast or within the river systems of South Vietnam.  These vessels are collectively referred to as the "Brown Water" navy because they operated on the muddy, brown-colored inland waterways of Vietnam.  In general, patrolling of close coastal waters and the larger rivers was conducted by 50-foot swift boats while patrolling of smaller rivers and waterways was carried out by 30-foot river patrol boats. 

Although operations on the inland waterways of Vietnam were primarily conducted by Brown Water Navy and Coast Guard vessels, some larger Blue Water Navy vessels periodically entered the inland waterways to provide gunfire support or deliver troops or destroyers that entered a river such as the Saigon River in the southern delta area.  Following these temporary inland waterway operations, destroyers would return to patrolling the offshore gun line or travel farther out to sea for aircraft carrier escort duty.  A number of Blue Water Navy amphibious assault and supply vessels also periodically entered inland waterways to deliver troops for combat missions or supplies for units stationed on the rivers.  See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA Compensation and Pension Service).

In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy Veteran, development must provide evidence that the Veteran's ship operated temporarily on the inland waterways of Vietnam or that the Veteran's ship docked to the shore or a pier.  In claims based on docking, a lay statement that the Veteran personally went ashore must be provided.  Although evidence that a Veteran's ship docked, along with a statement of going ashore, is sufficient for the presumption of herbicide exposure, service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient.  Open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau are considered extensions of ocean waters and not inland waterways.  They are not considered similar to the rivers, canals, and estuaries that make up the inland waterway system.  Blue Water Navy ships occasionally entered these open water harbors and anchored temporarily without docking to take on fuel from harbor barges.  Sometimes ships would briefly anchor so that ranking officers could attend strategy meetings ashore.  In such cases, a small board manned by a coxswain would usually ferry the officers ashore.  Deck logs and ship's histories will generally not provide names of personnel going ashore from anchorage.  However, evidence that a claimant served as a coxswain aboard a ship at anchorage, along with a statement from the Veteran of going ashore, may be sufficient to extend the presumption of exposure.  Id.  

The evidence must show that the ship actually docked on the shore and was not anchored in an open deep-water harbor such as Da Nang, Vung Tau, or Cam Ranh Bay.  Evidence of shore docking is required.  See Veterans Benefits Administration  (VBA) Fast Letter 10-37 (September 10, 2010).

In December 2008, VA Compensation and Pension (C&P) Service released policy on Vietnam Naval Operations.  C&P Service initiated a program to collect data on Vietnam naval operations for the purpose of providing ROs with information to assist with development in Haas-related disability claims based on herbicide exposure from Navy Veterans.  This particular policy statement provided further definition as to what constitutes Vietnam "Blue Water" versus "Brown Water" for the purpose of determining Agent Orange exposure.  It was determined that Da Nang Harbor and all other deep-water harbors along the Vietnam coastline were considered by C&P Service to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam.  Ultimately, VA considers open deep-water coastal harbors, such as those at Da Nang, Cam Ranh Bay, and Vung Tau to be part of the offshore blue water of Vietnam and not part of its inland waterway.  See December 2008 C&P Service Bulletin. 

The Board also notes that a February 2009 C&P Bulletin, in pertinent part, indicates that if development provided evidence that a blue water Veteran served aboard a ship that docked on the shores of Vietnam and places the Veteran aboard the ship at that time, and the Veteran provides a statement that he went ashore, this will be sufficient evidence to establish a presumption of herbicide exposure.  The bulletin clarifies that the evidence must indicate that the ship actually docked on shore, and that service aboard a ship anchored in an open deep-water harbor such as Da Nang is not the same as docking to the shore.  Evidence of shore docking is required.  See February 2009 C&P Service Bulletin. 

A January 2011 VA document entitled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents indicates that the USS Salisbury Sound, in pertinent part, was anchored at Cam Ranh Bay for month-long periods during 1966 to repair and tend to Navy sea planes with the likelihood that crew members went ashore on liberty leave.  

The diseases listed in 38 C.F.R. § 3.309(e) that are presumptively associated with Agent Orange exposure include Type II Diabetes Mellitus and "early onset" peripheral neuropathy.  These diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of the 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 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. § 3.309(e).

VA regulations specify that the last date on which a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.  38 C.F.R. § 3.307(a)(6)(iii).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586 -57,589 (1996).


This does not however preclude a claimant from establishing his entitlement to service connection for disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  Indeed, in McCartt v. West, 12 Vet. App. 164, 167 (1999), the Court clarified that the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange.

Consequently, Type II Diabetes Mellitus shall be presumptively service connected if it manifested to the required minimum compensable degree of at least 10-percent disabling within one year of service or if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of the disease during service.

Competency of evidence differs from its credibility and ultimate probative weight.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  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.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although this is not determinative of an opinion's probative value.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


Discussion

Type II Diabetes Mellitus

There is no disputing the Veteran has this claimed condition, as this diagnosis is reflected in his medical evaluation and treatment records.  According to his March 2011 hearing testimony, it was first diagnosed in 2005 or thereabouts.

The USS Salisbury Sound was anchored in Cam Ranh Bay for several periods in 1966.  The Veteran served aboard the USS Salisbury Sound during those periods in 1966.  Anchorage in Cam Ranh Bay indicates that the USS Salisbury Sound was in the Blue Waters off the coast of Vietnam, and service aboard that ship, in and of itself, does not denote service in the Republic of Vietnam.  VAOPGCPREC 27-97.  The Veteran, however, has testified that he went ashore 10 to 12 times both in the fulfillment of his duties and for recreational purposes.  He submitted a "buddy statement" corroborating these assertions.

According to the January 2011 VA document entitled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, the USS Salisbury Sound, in pertinent part, was anchored at Cam Ranh Bay for month-long periods during 1966 to repair and tend to Navy sea planes with the likelihood that crew members went ashore on liberty leave.  This information along with the Veteran's assertions of having set foot on Vietnam soil is sufficient to establish that he had service in Vietnam within the meaning of VA laws and regulations.  See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA C&P Service); see also 3.307(a)(6)(iii).

Because he had the requisite Vietnam service under 3.307(a)(6)(iii), his exposure to herbicide agents is presumed, and service connection for his Type II Diabetes Mellitus is warranted presumptively based on his presumed exposure to those herbicides in Vietnam.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).

The Board therefore need not discuss any alternative theories of entitlement, as service connection for the Type II Diabetes Mellitus is being granted presumptively based upon herbicide exposure in Vietnam.

Bilateral Hearing Loss

There equally is no disputing the Veteran has bilateral (left and right ear) hearing loss.  But just as in the case of his Type II Diabetes Mellitus, there also has to be attribution of this disability to his military service to warrant the granting of entitlement to service connection.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

He asserts that his bilateral hearing loss is due to noise exposure during his service aboard the Naval ship already referenced.

His service treatment records (STRs) do not reflect any complaints, treatment, findings, or manifestations consistent with hearing loss.  He did not report hearing loss during his service, including when examined in anticipation of separating from service, and hearing loss was not detected at any time during his service, including during that exit examination.  Instead, hearing loss was initially diagnosed in approximately 2006, so not until some 39 years after the conclusion of his service in July 1967.

He has sufficient hearing loss to be considered a ratable disability according to VA standards, meaning sufficient loss to meet the threshold minimum requirements of  38 C.F.R. § 3.385.  Indeed, on VA examination in June 2009, audiometric testing results were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
55
65
90
105
105+
LEFT
35
45
80
95
105

Speech recognition was 64 percent in the right ear and 76 percent in the left ear.

So it is not a matter of whether he has a ratable hearing loss disability, rather, attribution of this disability to his service and, in particular, to the noise exposure he says he experienced aboard ship.

He asserts that, in approximately 2009, a VA audiologist told him the bilateral hearing loss was due to service.  But a comprehensive review of VA clinical records from during that period in time does not reveal any such statement or declaration by a VA audiologist.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and a layman's account of what was purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent evidence in support of a claim for service connection).

The Veteran was afforded a VA audiologic examination in June 2009, both to determine whether he had sufficient hearing loss to be considered a ratable disability according to 38 C.F.R. § 3.385, which, as conceded, he does, and then for a medical nexus opinion regarding the etiology of this hearing loss - but especially insofar as the likelihood it is the result of the noise exposure aboard the ship in service.  To facilitate making this important determination, the examiner reviewed the record in its entirety and took a thorough history from the Veteran.  After considering all of the relevant evidence, the examiner opined that the Veteran's current bilateral hearing loss was unrelated to noise exposure in service.  The examiner explained that the first reference to treatment of the ears was in 1994, when the Veteran indicated that he was having problems with his ears, which was likely related to the placement of pressure equalization tubes.  The examiner noted a history of drainage as well as a history of post-service occupational noise exposure in determining the Veteran's bilateral hearing loss was not likely related to service.


The Board resultantly finds that the Veteran's bilateral hearing loss was not incurred in service because there is no evidence of hearing loss or circumstances consistent therewith in his STRs.  Moreover, he does not assert the presence of bilateral hearing loss during his service or even within the one-year presumptive period following the conclusion of his service allowing for the initial manifestation of sensorineural hearing loss in particular to the required minimum compensable degree of at least 10-percent disabling.  Rather, during his March 2011 videoconference hearing before the Board, he asserted that he had begun experiencing hearing loss just six or seven years earlier.  So his hearing loss admittedly was not present during his service or even during the first post-service year to permit it being presumed to have been incurred during his service.  Instead, it was not first shown until many years later - on the order of nearly 4 decades.

As already alluded to, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  So while the Board cannot categorically reject lay evidence out of hand merely because it is unaccompanied by contemporaneous medical evidence, such as actual treatment records, it is nonetheless permissible for the Board to cite the absence of this type of supporting evidence in discounting the ultimate probative value of lay evidence in relation to other relevant evidence in the file.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).  Consider also that, for continuity of symptomatology to be considered under § 3.303(b) (aside from needing to have a "chronic disease" as defined by § 3.309(a)), the condition must have been "noted" during the Veteran's service, else there is no condition to continue experiencing, and in this particular instance even he readily admits it was not first noted during his service.

In Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Still, ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, the Board finds that that evidence as a whole does not establish that the Veteran's bilateral hearing loss is related to his service.  The Board is mindful of his assertions.  However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the causes of hearing loss fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Thus, the Board does not find probative his assertions regarding the etiology of his bilateral hearing loss in terms of it being related or attributable to noise exposure during his service.


The Board, moreover, does not find credible his assertions regarding being told that his hearing loss was related to his service, as contemporaneous medical records are inconsistent with this allegation.  See, e.g., Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology).

The only competent, credible and therefore ultimately probative evidence of record regarding the etiology of the Veteran's bilateral hearing loss is the June 2009 VA compensation examiner's opinion.  That VA examiner concluded the Veteran's current bilateral hearing loss was unrelated to his military service.  That examiner provided a complete and reasoned rationale for this opinion, which is where most of the probative value is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The opinion was not just premised on review of the claims file, and although it cited the absence of earlier treatment (rather than necessarily symptoms) as tending to suggest against the required causation, that was not the only reason for concluding against the claim.  The Board, therefore, accords this medical opinion the most probative weight.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence).

Because the only competent, credible and therefore ultimately probative evidence of record reflects that the Veteran's bilateral hearing loss is unrelated to his service, service connection for this disability must be denied.  38 C.F.R. § 3.303(d).  For these reasons and bases discussed, the preponderance of the evidence is against his claim.  And because the preponderance of the evidence is against his claim, the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.



ORDER

The claim of entitlement to service connection for Type II Diabetes Mellitus is granted.

However, the claim of entitlement to service connection for bilateral hearing loss is denied.


REMAND

As concerning the remaining claims, they must be remanded, rather than decided immediately, to ensure they are afforded every possible consideration.

Regarding the claims of service connection for Addison's disease and CAD, corrective VCAA notice is necessary.  The RO previously denied entitlement to service connection for these disabilities by a rating decision that became final and binding based on the evidence then of record.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2013) (outlining the procedures and time limitations for appealing adverse RO determination to the Board and the finality of those determinations not timely appealed).  In order to reopen a finally-decided claim, an appellant must submit new and material evidence.  38 C.F.R. § 3.156 (2013).

When an appellant files a claim that necessitates the submission of new and material evidence, VA is required to provide a specific type of notice under the VCAA.  See generally Kent v. Nicholson, 20 Vet. App. 1 (2006).  In Kent, the Court 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 claim for the benefit that is being sought.  To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial.

The Veteran also has indicated that he sought treatment at the Fayetteville VAMC for breathing problems in 1968, so more contemporaneous to the time when he was in service.  Efforts therefore have to be made to try and obtain clinical records from the Fayetteville VAMC dated from July 1967 to the present and especially for the time period from July 1967 to December 31, 1968.  See 38 C.F.R. § 3.159(c)(2) (2011); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1.  Send the Veteran a VCAA notice letter that complies with the Court's holding in Kent.  Specifically, the letter must detail the type of evidence needed to reopen the claims of entitlement to service connection for Addison's disease and CAD, explain the bases of the prior denials of these claims, and describe what evidence would be necessary to substantiate those elements required to establish entitlement to service connection for these disabilities that were found insufficient in the previous denials of these claims.


2.  Also try and obtain and associate with the claims file all VA clinical records dated from July 1967 to the present and especially for the time period between July 1967 and December 31, 1968 from the Fayetteville VAMC.  Since these records are in the custody of a Federal department or agency, namely VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2).  Thus, make as many attempts to obtain these records (assuming they still exist) as are necessary according to this VA regulation.  Also appropriately notify the Veteran if unable to obtain these records after the required attempts.  38 C.F.R. § 3.159(e)(1).

3.  Then readjudicate these remaining claims in light of this and all other additional evidence.  The first has to be new and material evidence to reopen the claims for Addison's disease and CAD, so this has to be the threshold preliminary determination concerning these claims.  It is only permissible to readjudicate them on their underlying merits (meaning on a de novo basis) if there first is this required new and material evidence.

In contrast, the claim for service connection for COPD requires immediate readjudication on the underlying merits since there is no prior final and binding denial of this claim.

If these claims continue to be denied, send the Veteran and his representative an SSOC concerning these remaining claims and given them opportunity to respond to it before returning these claims to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs