Citation Nr: 1605627 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 14-06 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for asthma. 2. Entitlement to service connection for asthma, to include as due to exposure to herbicides. 3. Entitlement to an initial rating higher than 10 percent for tinnitus. 4. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran & Spouse ATTORNEY FOR THE BOARD L. Edwards Andersen INTRODUCTION The Veteran had active service from June 1961 to February 1963. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A notice of disagreement was received in September 2013, a statement of the case was issued in November 2013, and a VA Form 9 was received in January 2014. The Veteran requested a hearing before the Board. The requested hearing was conducted in October 2015 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the October 2015 hearing, the undersigned VLJ fully explained the issues involved. Also, the VLJ suggested submission of evidence, in order to reopen the Veteran's claim, which had not yet been provided. The Veteran was represented at the hearing by a representative of the Veterans of Foreign Wars of the United States. A review of the record reveals no assertion, by the Veteran or her representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran and his representative demonstrated actual knowledge of the elements and evidence necessary to substantiate the claims, as evident in the provided testimony. Therefore, the undersigned met all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, and there has been no prejudice. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not raised a claim for TDIU and the evidence does not indicate that he is unemployable due to his bilateral hearing loss. Accordingly, the Board finds that Rice is not applicable in this case. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for asthma and entitlement to an initial compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 1969 rating decision denied the claim of entitlement to service connection for asthma. The Veteran did not file an appeal to that decision and it is final. 2. Evidence pertaining to the Veteran's asthma received since the October 1969 decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. In October 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to an initial rating higher than 10 percent for tinnitus was requested. CONCLUSIONS OF LAW 1. The October 1969 rating decision that denied entitlement to service connection for asthma is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received since the October 1969 rating decision is new and material, and the Veteran's claim for service connection for asthma is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for withdrawal of the appeal for entitlement to an initial rating higher than 10 percent for tinnitus by the Veteran (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, the Board is reopening the Veteran's claim for entitlement to service connection for asthma and the Veteran has withdrawn his claim for an increased rating for tinnitus. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA for these issues, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for Asthma The Veteran seeks to reopen his previously denied claim for entitlement to service connection for asthma. Notwithstanding determination by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The record reflects that a claim for service connection for asthma was last denied in a rating decision of October 1969. The Veteran did not complete a timely appeal and subsequently the October 1969 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be opened if new and material evidence is submitted. In this instance, since the October 1969 rating decision denied the claim on the basis that there was no evidence that the Veteran's pre-existing asthma was aggravated during service, the Board finds that new and material evidence would consist of evidence that the Veteran's asthma was aggravated during service. The evidence received since the October 1969 rating decision consists of numerous records and documents. Among other things, the Veteran testified in October 2015 that his asthma was aggravated during service due to exposure to herbicides, as well as from exposure to environmental hazards as a result of a typhoon that occurred during service. See October 2015 BVA Hearing Transcript, pages 6-9. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Presuming its credibility, the aforementioned evidence indicates that the Veteran's asthma may have been aggravated during service as a result of exposure to herbicides and/or environmental hazards due to a typhoon. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for asthma. See 38 C.F.R. § 3.156(a). The Board determines that the claim is reopened. III. Entitlement to an Initial Rating Higher than 10 Percent for Tinnitus The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). 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 (2015). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the issue of entitlement to an initial rating higher than 10 percent for tinnitus. See October 2015 BVA Hearing Transcript, pages 2-3. 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. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for asthma; to this extent, the appeal is granted. Entitlement to an initial rating higher than 10 percent for tinnitus is dismissed. REMAND The claim for entitlement to service connection for asthma has been reopened and after reviewing the record, the Board concludes that further development is necessary. The Veteran also seeks entitlement to an initial compensable rating for bilateral hearing loss. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Asthma The Veteran asserts his asthma was aggravated during service as a result of exposure to herbicides, the climate, and exposure to environmental hazards after a typhoon, while stationed in Guam. VA's Adjudication Procedures Manual, M21-1MR, provides procedures to develop claims based on herbicide exposure on a factual basis in locations other than in Vietnam or near the DMZ in Korea. See M21-1MR at IV.ii.2.C.10.o. As an initial step, the Veteran is to be requested to provide the approximate dates, location, and nature of the alleged exposure. If such information is obtained, the RO should furnish the Veteran's detailed description of exposure to the Compensation Service via email and request a review of the Department of Defense's (DoD's) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service's review does not confirm that herbicides were used as alleged and the Veteran has provided sufficient information to permit a search by the Joint Services Records Research Center (JSRRC), a request should be sent to JSRRC for verification of exposure to herbicides. In the instant case, regarding the Veteran's alleged herbicide exposure coincident with his service in Guam, the RO has not taken any steps to verify his exposure to herbicides. Therefore, the Board finds that a remand is necessary in order to attempt to verify the Veteran's alleged exposure to herbicides consistent with the guidance in the M21-1MR. Additionally, the Board notes that although the Veteran was afforded a VA examination for his asthma in March 2013, the Board finds the medical opinion provided is inadequate. The examiner failed to discuss any of the Veteran's contentions that his asthma was aggravated by the climate, exposure to herbicides and/or exposure to environmental hazards as a result of a typhoon that occurred during service. Furthermore, the examiner failed to offer a complete rationale for the opinion that the Veteran's asthma was not aggravated during service. See March 2013 VA examination. On remand, a medical opinion must be obtained that includes a full rationale. Bilateral Hearing Loss The Veteran asserts his bilateral hearing loss is more severe than what is represented by a noncompensable rating. VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened, or in cases where the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Here, the Board notes that the Veteran was afforded the most recent VA examination for his hearing loss in March 2013, which is more than two years ago. Furthermore, a review of the claims file reveals that there are no updated medical treatment records, subsequent to 2013. The Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Additionally, all updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's service personnel records from any appropriate source in order to ascertain the dates that he had service in Guam. If the service personnel records are unavailable or do not provide the necessary information, then obtain alternative documents traditionally used to verify such service to include the Veteran's military pay stubs if necessary. 2. Following receipt of the Veteran's service personnel records, or other related documentation verifying the Veteran's service and dates in Guam, the RO/AMC should verify the Veteran's alleged exposure to herbicides consistent with the guidance in the M21-1MR. The results of this development should be outlined in a memorandum for the record. 3. Obtain and associate with the claims file all updated treatment records. 4. Afford the Veteran a VA examination for his asthma. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. a) After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether the evidence clearly and unmistakably shows (i.e., it is undebatable) that the Veteran's current asthma disorder existed prior to service. b) If the answer to a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing asthma was not aggravated by service or that any increase in disability was due to the natural progression of the disorder? The examiner must consider the Veteran's lay statements regarding his symptoms in service. Whether these statements make sense from a medical point-of-view must be considered and discussed in the opinion. c) If the answer to a) is no, then answer the following: Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed asthma had its onset in service or is otherwise attributable to the symptoms experience during service? d) The examiner must offer comments and an opinion on the Veteran's contentions that the climate of Guam, exposure to herbicides, and/or exposure to environmental hazards after a typhoon, aggravated his asthma. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 5. Afford the Veteran a VA examination to determine the current severity of his bilateral hearing loss. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Ask the examiner to discuss all findings in terms of the 38 C.F.R. § 4.85, Diagnostic Code 6100. The pertinent rating criteria must be provided to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 6. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate his claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 7. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs