Citation Nr: 1336642 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-09 240 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ear hearing loss disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a sleep disorder, claimed as sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1977 and from November 1977 to October 1983. He also had service in the Army National Guard from November 1983 to November 1986. This matter came to the Board of Veterans' Appeals (Board) on appeal from RO rating decisions issued in December 2007 and September 2008. In September 2012, during the course of the appeal, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. After reviewing the record, the Board finds that additional development of the record is warranted with respect to the issue of entitlement to service connection for a sleep disorder, claimed as sleep apnea. Accordingly, that issue is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. On September 20, 2012, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for a left knee disorder. 2. On September 20, 2012, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for a right knee disorder. 3. In an unappealed rating decision, dated in September 2002, the RO denied the Veteran's claim of entitlement to service connection for a left ear hearing loss disability. 4. Evidence associated with the record since the September 2002 RO decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left ear hearing loss disability. 5. In an unappealed rating decision, dated in September 2002, the RO denied the Veteran's claim of entitlement to service connection for hypertension. 6. Evidence associated with the record since the September 2002 RO decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. With respect to the issue of entitlement to service connection for a left knee disorder, the criteria to withdraw the appeal have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. With respect to the issue of entitlement to service connection for a right knee disorder, the criteria to withdraw the appeal have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 3. The RO's September 2002 rating decision, which denied the Veteran's claim of entitlement to service connection for a left ear hearing loss disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2002). 4. New and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for a left ear hearing loss disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 5. The RO's September 2002 rating decision, which denied the Veteran's claim of entitlement to service connection for hypertension, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2002). 6. New and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Knees The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant withdrew his appeal with respect to the issues of entitlement to service connection for left and right knee disabilities at the September 2012 hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. The Left Ear Hearing Loss Disability and Hypertension VA's Duty to Notify and Assist The Veteran also seeks entitlement to service connection for a left ear hearing loss disability and hypertension. Prior to consideration of the merits of those issues, the Board must determine whether VA has met its statutory duty to assist him in the development of those claims. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that VA has met that duty. A review of the record discloses that this is not the Veteran's first claim entitlement to service connection for a left ear hearing loss disability or hypertension. Those claims have been denied by the RO on several occasions, the last time in September 2002. The Veteran was notified of each of that decision, as well as his appellate rights. However, he did not file a notice of disagreement with which to initiate an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2002). The Veteran has, since, filed applications to reopen those claims. In October 2007, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and assigning effective dates, should service connection be granted. In addition, VA informed the Veteran of the bases for the prior denials and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims. VA has obtained or ensured the presence of the Veteran's service treatment records; records reflecting his VA treatment from June 1988 through August 2008; records reflecting his treatment from October 1994 to February 2008 at or through the San Vicente Family Health Center; records reflecting his treatment or examination from April 1995 to March 1996 at a military medical facility; a July 1995 statement from P. A. C., M.D.; records reflecting the Veteran's treatment from February 1998 to June 2007 at or through the Thousand Oaks Clinic; a September 2007 report from the Milam Park Sleep Center; a February 2009 statement from R. D. M., a former fellow serviceman; the April 2012 decision of an Administrative Law Judge with the Social Security Administration, and the transcript of the Veteran's September 2012 hearing before the undersigned Veterans Law Judge. The hearing transcript shows that the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding Veterans Law Judge identified the material issues, permitted the Veteran's representative to ask the Veteran questions, asked the Veteran when he started receiving treatment for hypertension, asked the Veteran whether a doctor had ever told him that his hypertension was related to service, ascertained where the Veteran had received treatment, and asked whether the Veteran had anything to add that had not been discussed. In addition, the Veteran's Law Judge agreed to hold the record open for 30 days so that the Veteran could submit additional evidence. For these reasons, the Board finds no prejudice to the any of the Veteran's claims as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). In September 1991, VA examined the Veteran, in part, to determine the nature and etiology of any hearing loss disability or hypertension found to be present. The VA examination report shows that the examiner interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examination was adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support any of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to determine whether or not new and material evidence has been received to reopen claims of entitlement to service connection for a left ear hearing loss disability and hypertension. The Left Ear Hearing Loss Disability Service connection is warranted for a particular disability, when there is competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In September 2002, as now, impaired hearing, for VA purposes is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2013). In September 2002, when the RO last denied the Veteran's claim of service connection for a left ear hearing loss disability, the evidence on file consisted of the Veteran's service treatment records, records reflecting the Veteran's VA treatment from June 1988 through April 1991; the report of the April 1991 VA examination; and records reflecting the Veteran's treatment at the Thousand Oaks Clinic from December 1998 through June 2002. Although the Veteran demonstrated a puretone threshold of 40 decibels during a September 1982 examination in service, the preponderance of his service treatment records and the reports of his service entrance and separation examinations in May 1973 and July 1983 were negative for any thresholds exceeding the VA criteria for a hearing loss disability in his left ear. Indeed, during his July 1983 service separation examination, he only demonstrated one puretone threshold as high as 35 decibels, that at 4000 decibels in his left ear. During his October 1991 VA examination, audiometric testing was also negative for a left ear hearing loss disability. Again, he only demonstrated one puretone threshold as high as 35 decibels in the left ear, that at 4000 decibels. A severe sensorineural hearing loss in the Veteran's left ear was noted in April 1995 during treatment at the Thousand Oaks Clinic. However, there were no supporting audiometric studies or competent evidence to support the Veteran's lay assertion of a nexus to service. Absent evidence of a chronic, identifiable left ear hearing loss disability in service or competent evidence of nexus to service, the Veteran did not meet the criteria for service connection for a left ear hearing loss disability. Accordingly, service connection was denied, and, as noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. 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 VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). New evidence means existing evidence not previously submitted to VA decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Relevant evidence added to the record since the RO's September 2002 decision consists of records reflecting the Veteran's treatment from July 2007 through August 2008; a September 2007 report from the Milam Park Sleep Center; a February 2009 statement from R. D. M., a former fellow serviceman; the April 2012 decision of an Administrative Law Judge with the Social Security Administration, and the transcript of the Veteran's September 2012 hearing before the undersigned Veterans Law Judge. Such evidence is new in the sense that it has not previously been before the VA. However, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. The statement from R. D. M. indicates that the Veteran had difficulty hearing in service, and the April 2012 Social Security Decision shows that the Veteran has a bilateral hearing loss. However, there is no competent, objective evidence to suggest that he had a chronic, identifiable hearing loss disability for VA purposes, either in service or for many years thereafter. Moreover, the additional evidence does not show a nexus between the Veteran's current left ear hearing loss disability and service. As such, the additional evidence is either cumulative or redundant of the evidence of record in September 2002. Even when considered with the evidence previously of record, it does not raise a reasonable possibility of substantiating the claim. Because the additional evidence is not new and material, it does not meet the criteria to reopen the Veteran's claim of entitlement to service connection for a left ear hearing loss disability. Accordingly, that issue on appeal is denied. Hypertension In September 2002, when the RO last denied the Veteran's claim of service connection for hypertension, the evidence on file consisted of the Veteran's service treatment records, records reflecting the Veteran's VA treatment from June 1988 through April 1991; the report of the April 1991 VA examination; and records reflecting the Veteran's treatment at the Thousand Oaks Clinic from December 1998 through June 2002. The Veteran's service treatment records showed that at the time of his May 1973 service entrance examination, his blood pressure was 126/70. At the time of his July 1983 service separation examination, it was 110/68. During service, he demonstrated blood pressure readings of 169/70 in February 1979, 142/94 in September 1969, and 136/102 in March 1983. However, the preponderance of the Veteran's blood pressure readings revealed a systolic pressure below 150 and a diastolic pressure below 90. Indeed, there were no complaints or clinical findings of hypertension in service or evidence that the Veteran was taking medication for hypertension. Hypertension was first manifested in April 1991, during VA treatment many years after service, and there were no findings that it was in any way related to service. During his September 1991 VA examination, the Veteran reported that hypertension had been noted in service during a routine 1979 examination. As above, however, that statement was not substantiated by his service treatment records. In addition, there was no competent, objective evidence of a relationship between the Veteran's hypertension and any event in service. Absent a diagnosis of hypertension in service or evidence of a nexus to service, the Veteran did not meet the criteria for service connection. Accordingly, service connection was denied, and as noted above, that decision also became final. Evidence added to the record since the RO's September 2002 decision consists of records reflecting the Veteran's treatment from July 2007 through August 2008; a September 2007 report from the Milam Park Sleep Center; a February 2009 statement from R. D. M., a former fellow serviceman; the April 2012 decision of an Administrative Law Judge with the Social Security Administration, and the transcript of the Veteran's September 2012 hearing before the undersigned Veterans Law Judge. Such evidence is new in the sense that it has not previously been before the VA. However, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. Such evidence remains negative for a finding of hypertension in service or a nexus between the Veteran's current hypertension and any incident in service. A statement from R. D. M. indicates that he saw the Veteran taking medication in service, which the Veteran reported to be medication for hypertension. Such statement conflicts with the Veteran's service treatment records which are negative for any evidence of hypertension or medication for hypertension. Moreover, during his September 1991 VA examination, the Veteran stated that medication was not necessary to treat his alleged hypertension in service. Therefore, R. D. M.'s statement regarding hypertension is not credible and cannot be used to support the claim. Absent competent evidence of hypertension in service or competent evidence of nexus between the Veteran's current hypertension and service, the additional evidence is either cumulative or redundant of the evidence of record in September 2002. Even when considered with the evidence previously of record, it does not raise a reasonable possibility of substantiating the claim. Because the additional evidence is not new and material, it does not meet the criteria to reopen the Veteran's claim of entitlement to service connection for hypertension. Accordingly, that issue on appeal is also denied. ORDER The issue of entitlement to service connection for a left knee disorder is dismissed. The issue of entitlement to service connection for a right knee disorder is dismissed. New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for a left ear hearing loss disability is denied. New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for hypertension is denied. REMAND The claim of entitlement to service connection for sleep apnea is remanded for further development to the RO through the Appeals Management Center in Washington, D.C. 1. In April 2012, a decision by an Administrative Law Judge granted the Veteran's claim Veteran's claim for Social Security benefits. The AMC must request the Veteran's Social Security records DIRECTLY from the Social Security Administration. Such records must include, but are not limited to, a copy of the Veteran's award letter and the medical records associated with the decision. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 2. The AMC must ask the Veteran to provide the names and addresses of all health care providers who have treated him since service for a sleep disorder, including sleep apnea. Also request that he provide the dates of that treatment. Then request the records of that treatment DIRECTLY from the health care providers identified by the Veteran. Also request that the Veteran provide any such records he may have in his possession. A failure to respond or a negative response to any request must be noted in writing and associated with the claims file. If the requested records are held by an agency or department of the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). If the requested records are unavailable, but are not held by an agency or department of the federal government, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 3. The Veteran's service treatment records and the reports of his service entrance and separation examinations are negative for any complaints or clinical findings of sleep disorder of any kind, including sleep apnea. In February 2009, R. D. M., a former fellow serviceman, stated that the Veteran snored in service and that other fellow servicemen often commented on his snoring. In an April 2012 decision by an Administrative Law Judge with the Social Security Administration, it was noted that the Veteran had sleep apnea manifested by loud snoring, gasping for breath during sleep, morning headaches, and dry mouth upon awakening. The question of whether the Veteran's current sleep apnea may be related to the reported snoring in service involves a medical question. To date, however, the Veteran has not been examined by the VA to determine the answer to that question. When the actions in part 1 have been completed, the AMC must schedule the Veteran for an examination to determine the nature and etiology of any sleep disorder found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a sleep disorder(s) is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must also render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the Veteran's sleep disorder was first manifested in service, including but not limited to, his reports of loud snoring. The VA examiner must state how and why he or she reached the opinion they did. If the examiner is unable render an opinion without resorting to speculation, he or she must also state the reasons for that determination. The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2013). In the event that the Veteran does not report for a scheduled VA examination, associate with the claims folder a copy of the notice informing him of the date, time, and location of the examination. If that notice was returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 4. When the actions in parts 1, 2, and 3 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a sleep disorder, claimed as sleep apnea. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs