Citation Nr: 1600206 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 14-20 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss, to include sensorineural hearing loss. 3. Entitlement to service connection for Parkinson's disease. 4. Entitlement to service connection for a heart disability. 5. Entitlement to service connection for diabetes mellitus. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to March 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2011 and March 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issues of entitlement to service connection for Parkinson's disease, a heart disability, diabetes mellitus, hypertension, erectile dysfunction, and sleep apnea are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. An unappealed December 1979 rating decision denied service connection for hearing loss. 2. The evidence associated with the record subsequent to the December 1979 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. The Veteran does not have a bilateral hearing loss, or sensorineural hearing loss, that constitutes a disability for VA purposes. CONCLUSIONS OF LAW 1. A December 1979 decision that denied a claim of entitlement to service connection for hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.1103 (2015). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for bilateral hearing loss, to include sensorineural hearing loss, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Because of the Board's favorable disposition of the petition to reopen the claim for service connection for bilateral hearing loss, the Board finds that all notification and development action needed to fairly adjudicate that part of the appeal has been accomplished. With regard to the claim for service connection for hearing loss, the Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated November 2010, May 2011, and April 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2014 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, a claim which has been denied in a final unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2014). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). New evidence is evidence that has not previously been reviewed by VA adjudicators. Material evidence is 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the new evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A December 1979 rating decision denied service connection for hearing loss based on the finding of normal hearing at the most recent examination. The pertinent evidence of record at the time of the December 1979 rating decision included the Veteran's service medical records, claim for service connection, and an October 1979 VA examination report. The pertinent evidence that has been received since the December 1979 rating decision includes a January 2012 letter from Dr. Ortiz regarding the Veteran's various claims for service connection including hearing loss and a July 2012 VA examination report. The evidence received since the December 1979 rating decision is new and material as it provides more information regarding the Veteran's hearing loss claim. The new evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact needed to establish service connection by showing reports of hearing impairment. Moreover, it raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that reopening of the claim of entitlement to service connection for bilateral hearing loss is warranted because new and material evidence has been presented. Service Connection 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 2014). To establish 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Service connection may also be established for certain chronic diseases manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309 (2015). Sensorineural hearing loss is a chronic disease with a presumptive period of one year. 38 C.F.R. §§ 3.307, 3.309 (2015). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2015). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic, including hearing loss. 38 C.F.R. § 3.309(a) (2014); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There are also specific requirements regarding what constitutes a hearing loss disability in order to establish service connection. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be 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 (2015). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service separation forms shows he served in the Air Force as an aircraft environmental system repairman. The service medical records show impaired hearing as defined by 38 C.F.R. § 3.385 at various times. At enlistment on March 3, 1972, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 On evaluation in March 1972, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 0 LEFT 10 5 0 5 5 On evaluation in March 14, 1973, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 20 25 20 LEFT 10 10 20 15 25 At separation examination on February 25, 1975, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 40 50 60 LEFT 40 35 45 55 50 On evaluation on February 28, 1975, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 40 45 40 LEFT 40 40 35 30 40 A February 1975 record shows the Veteran's separation examination was found to have significant bilateral hearing loss and the examiner noted the that pattern of loss was not typical for noise exposure. A later February 1975 record indicates that the examiner suspected malingering as on examination the Veteran appeared to understand soft voices. On a first evaluation on March 6, 1975, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 50 50 50 LEFT 60 60 60 55 65 On a second evaluation on March 6, 1975, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 30 50 45 LEFT 40 50 40 55 45 On VA audiological examination in October 1979, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 N/A 10 LEFT 10 10 10 N/A 10 The accompanying speech discrimination test did not use the Maryland CNC test. On VA audiological examination in February 2011, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 20 LEFT 15 15 15 15 15 The speech recognition score using the Maryland CNC test was 100 percent in the left and right ears. In a January 2012 letter, a private physician stated that the Veteran had bilateral hearing loss problems. The physician noted the Veteran's difficulty hearing the television, radio, and a need to have things repeated. On VA audiological examination in July 2012, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 20 LEFT 15 15 15 15 15 The speech recognition score using the Maryland CNC Test was 100 percent in the left and right ears. The July 2012 VA examiner found normal hearing for VA purposes in both ears. The examiner stated that the 30 decibel loss at 6000 Hertz in both ears was not considered clinically significant for communication purposes. The Veteran is competent to report that which he has personally experienced, such as noise exposure and hearing problems. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements concerning his experiences in service and difficulties hearing to be credible and consistent with the circumstances of his service. However, the Veteran is not competent to state whether any hearing loss meets VA's requirements for a disability pursuant to 38 C.F.R. § 3.385. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question of disability in this instance requires specialized training, which the Veteran does not have, and diagnostic testing. In this case, the testing results during and contemporary to the appeal period do not establish a current hearing loss disability as defined by 38 C.F.R. § 3.385, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at a minimum of three frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition scores were not less than 94 percent. 38 C.F.R. § 3.385 (2015). Moreover, neither the Veteran nor representative has presented or identified existing audiometric testing results that meet the requirements of the regulation for a bilateral hearing loss disability. Therefore, on this record, the Veteran is not shown to have a bilateral hearing loss disability or sensorineural hearing loss for VA compensation purposes. The test results are controlling and the Board finds them to be more probative than the lay evidence. Accordingly, the Board finds that the preponderance of the evidence is against the claims and the claim for service connection for bilateral ear hearing loss and sensorineural hearing loss must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been presented and the claim of entitlement to service connection for bilateral hearing loss is reopened. To that extent only, the claim is granted. Entitlement to service connection for bilateral hearing loss, to include sensorineural hearing loss, is denied. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran contends that service connection is warranted for Parkinson's Disease, a heart disability, and diabetes mellitus, resulting from in-service herbicide exposure. Specifically, the Veteran asserts that he was exposed to Agent Orange at Anderson Air Force Base in Guam between 1973 and 1974 and in the Republic of Vietnam. In addition, the RO developed the claim of entitlement to service connection for hypertension as a result of herbicide exposure. Although there is a National Personnel Records Center (NPRC) determination showing no records of exposure to herbicide with respect to service in the Republic of Vietnam, it does not appear that sufficient development has occurred regarding any service in Guam. VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam. Concerning sleep apnea, a February 2010 VA treatment record shows the Veteran was provided a sleep study performed through a fee basis appointment. The results of that study are not of record. With regard to the claim for service connection for erectile dysfunction, the Veteran claims that erectile dysfunction is secondary to diabetes mellitus. The Board finds that the claim of entitlement to service connection for erectile dysfunction is inextricably intertwined with the pending claim for service connection for diabetes mellitus, and should also be remanded pending resolution of the claim for service connection for diabetes mellitus. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, all available VA and non-VA treatment records should be obtained, to specifically include the records from the fee basis sleep study provider. 38 U.S.C.A. § 5103A(a)-(c). Accordingly, the case is REMANDED for the following action: 1. Conduct all appropriate development to verify whether the Veteran was exposed to herbicides while stationed in Guam, to include verification of service in Guam. Follow the procedures to verify whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam. 2. Associate all available VA and non-VA treatment records with the record, to specifically include records of a fee basis sleep study. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).