Citation Nr: 1602781 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 12-06 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen entitlement to service connection for diabetes mellitus, type II. 2. Whether new and material evidence has been received to reopen entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and bipolar disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and bipolar disorder. 4. Entitlement to service connection for a heart condition, to include hypertension. 5. Entitlement to a compensable rating for bilateral hearing loss. 6. Entitlement to a rating in excess of 10 percent for tinnitus. 7. Entitlement to a total disability rating due to individual unemployability. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Esq. ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from June 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2009 and March 2012 decisions issued by the Regional Office (RO) in Atlanta, Georgia. In August 2009, the RO did not reopen the Veteran's service connection claim for diabetes, and denied service connection for an acquired psychiatric disorder and a heart condition. This rating decision also denied entitlement to a compensable rating for bilateral hearing loss. The Veteran timely appealed this decision. In March 2012, the RO denied entitlement to a total disability rating due to individual unemployability, but granted service connection for tinnitus and assigned a 10 percent disability rating. The Veteran's Notice of Disagreement (NOD) was received in April 2012. The Statement of the Case (SOC) was issued in August 2014 and a VA Form 9, Substantive Appeal, was received from the Veteran in September 2014. However, the Veteran's address on this SOC appears to have expired as he subsequently provided correspondence using his new mailing address in October 2014 to request the issuance of the SOC. Regardless, the Board has accepted the Veteran's September 2014 Substantive Appeal as timely and will assume jurisdiction over these two issues even though they were not certified by the agency of original jurisdiction. See 38 C.F.R. § 19.35. In September 2015, the Veteran was scheduled to appear at a Board hearing, but submitted timely correspondence in August 2015 to withdraw this request. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2015). In that same request to the withdraw his Board hearing, the Veteran submitted a separate request for an extension in order to submit additional evidence and argument, which was granted by the undersigned Veterans Law Judge in October 2015. The issues of entitlement to service connection for a heart condition, service connection for an acquired psychiatric disorder, as well as entitlement to a compensable rating for bilateral hearing loss, a rating in excess of 10 percent for tinnitus, and a total disability rating due to individual unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A June 2006 rating decision that denied service connection for diabetes on the basis that this disease was not shown during service or within one year thereof and was not appealed. 2. New and material evidence has not been received to substantiate the claim of entitlement to service connection for diabetes. 3. A September 2002 RO decision that denied service connection for bipolar disorder was not appealed and the decision became final. 4. New and material evidence has been received since the September 2002 decision to substantiate the claim of entitlement to service connection for bipolar disorder. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2015). 2. In the absence of new and material evidence, the criteria to reopen service connection for diabetes mellitus, type II, has not been met. 38 U.S.C.A. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 3. The September 2002 rating decision that denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria to reopen service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board acknowledges the Veteran's service to his country and is sympathetic to his medical conditions; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Claims to Reopen Service Connection Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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(a) (2015). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection for diabetes. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Claim to Reopen Service Connection for Diabetes The Veteran originally filed a claim for entitlement to service connection for diabetes mellitus, type II (diabetes), in November 2005. The RO initially denied the claim in a June 2006 rating decision on the grounds that there was no evidence that the Veteran's disease was related to service. The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. In March 2012, the Veteran filed another claim of entitlement to service connection for diabetes. An August 2009 rating decision declined to reopen on the basis that new and material evidence had not been submitted. The Veteran timely appealed that decision. Since the original denial of benefits in June 2006, new documents have been associated with the claims file, but they still do not discuss the possibility of a nexus between the disease and service. This evidence consists of VA treatment records from February 2006 through June 2015 that only continue to show that the Veteran has a current diagnosis, and receives treatment, for his diabetes mellitus, type II. These documents represent evidence previously submitted to agency decision makers and do not relate to an unestablished fact necessary to substantiate the claim. In May 2015, VA sent correspondence to the Veteran that instructed him to submit any additional evidence regarding his possible exposure to herbicides while aboard a ship on the offshore "blue waters" of Vietnam. In December 2015, VA received a statement from the Veteran that he developed diabetes because he was exposed to herbicides as a result of "cleaning a gigantic vent beneath the flight deck," while stationed aboard a ship that "was located next to the island of the Intrepid that was in port in Quonset Point, Rhode Island." He also said that he "came down with all of the symptoms of being exposed to [Agent Orange]; including multiple myeloma, a severe rash, and diabetes." This new evidence could not reasonably substantiate the claim- were the claim to be reopened- because the evidence of record has already established that he was not exposed to herbicides during his time of sea service aboard the USS Intrepid. As a result, the Veteran's statement does not warrant additional duties to assist in developing his claim under this alternative theory of entitlement. Based on the foregoing, the Board finds that the additional evidence is not new and material to reopen the claim of service connection for diabetes mellitus, type II. Claim to Reopen Service Connection for an Acquired Psychiatric Disorder The Veteran also filed an original service connection claim for bipolar and schizophrenic disorder in July 2002. The RO initially denied the claim in a September 2002 rating decision on the grounds that there was no evidence that the Veteran's disability was related to service. The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. However, since that time, documents have been associated with the claims file that discusses the possibility of a nexus for this disability. This evidence includes VA examination nexus opinions from June 2009 and January 2012 that had not previously been associated with the file. As these documents represent evidence not previously submitted to agency decision makers and relates to an unestablished fact necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen the claim of service connection for an acquired psychiatric disorder. ORDER New and material evidence has not been received to reopen entitlement to service connection for diabetes mellitus, type II. New and material evidence has been received to reopen entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and bipolar disorder. REMAND Unfortunately, the Veteran's claims for entitlement to service connection for a heart condition, service connection for an acquired psychiatric disorder, as well as entitlement to a compensable rating for bilateral hearing loss, a rating in excess of 10 percent for tinnitus, and a total disability rating due to individual unemployability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. Initially, the Board notes a review of the record shows that the Veteran was granted disability benefits from the Social Security Administration (SSA) in August 2011. See SSA/SSI Letter, received March 17, 2014. Subsequent VA treatment records also indicate that the Veteran has received additional disability benefits from SSA. A remand is needed to obtain any determination and medical records relied upon by SSA. In the event that such records may be pertinent to the claims on appeal, on remand, an attempt should be made to obtain any determination and medical records relied upon for the SSA disability determinations. The Veteran contends that he is entitled to a higher disability rating for his service-connected bilateral hearing loss. The Veteran stated in his December 2015 letter that this condition has worsened since his last VA examination. As there is evidence indicating that the Veteran's condition has worsened since his last VA examination of record, the Board finds that the Veteran's claim should be remanded to provide the Veteran with an updated examination to accurately assess the current condition of his disability. In claims for an increase in rating, it is first and foremost a priority to ensure that the most current assessment of the service-connected disability picture is of record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, these issues are REMANDED for the following action: 1. Obtain a copy of the Social Security Administration decision regarding disability benefits for the Veteran. All the medical treatment records from the Social Security Administration that were used in considering the Veteran's claims for disability benefits should be obtained and associated with the claims file. Any negative development should be discussed and addressed in the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss. The claims file should be made available to the examiner in conjunction with the examination, and the examiner should specify in the report that the claims file has been reviewed. All pertinent symptomatology and findings must be reported in detail, including the impact of this disability on the Veteran's employment and activities of daily living. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs