Citation Nr: 1612552 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 11-03 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for hypertension, to include as secondary to service connected hyperthyroidism (Grave's disease) and/or as secondary to diabetes mellitus or a pulmonary disorder. 3. Entitlement to service connection for sleep apnea, to include as secondary to service connected hyperthyroidism (Grave's disease) and/or as secondary to diabetes mellitus or hypertension. REPRESENTATION Veteran represented by: Joseph Whitcomb, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1972 to May 1979 and March 1987 to October 1999. He also had additional reserve duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2015. A transcript of that hearing has been associated with the claims file. The Board notes that the Veteran was initially represented by Disabled American Veterans, but he changed representation to John Whitcomb in March 2015. The Board also notes that the Veteran's claims file contains a certification of appeal, dated July 2014, which indicates that a claim for posttraumatic stress disorder (PTSD) has been certified to the Board. This certification is in error, as the Veteran has not filed a substantive appeal for a PTSD claim. As such, the erroneous certification of appeal was a harmless error and the issue is not currently before the Board. This appeal was processed using Virtual VA and the Veterans Benefits Management System paperless claims processing system. Documents in Virtual VA include additional VA treatment records and other documents duplicative of what is in VBMS or irrelevant to the issues on appeal. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Board recognizes that the Veteran's representative attempted to raise the issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities at the Veteran's August 2015 hearing. The Veteran and his representative are advised that a claim for benefits filed after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). The issues of entitlement to service connection for chronic obstructive pulmonary disorder (COPD), leg tingling, glaucoma, wrist pain, hand pain, and knee pain have been raised by the record in an April 2014 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The claims file also shows that the Veteran underwent an examination in April 2015 for his claim for diabetes mellitus, however, the Board notes that the AOJ is continuing adjudication of this issue and a statement of the case and substantive appeal has not yet been issued. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for bilateral hearing loss, hypertension, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's claim for service connection for bilateral hearing loss was initially denied in a February 2000 rating decision; the Veteran appealed that decision, but later withdrew the appeal prior to issuance of a Board decision. 2. The evidence received since the final February 2000 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. 3. The Veteran's claim for service connection for hypertension was denied in March 2002 and November 2005 rating decisions; the Veteran did not appeal that decision or submit new and material evidence within one year either decision. 4. The evidence received since the final November 2005 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The February 2000 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2015). 2. The evidence received subsequent to the February 2000 rating decision is new and material and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The November 2005 rating decision that denied service connection for hypertension is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2015). 4. The evidence received subsequent to the November 2005 rating decision is new and material and the claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In the decision below, the Board has reopened and remanded the claims for service connection for bilateral hearing loss and hypertension, therefore, regardless of whether the requirements have been met in this case, no harm or prejudice to the Veteran has resulted. Therefore, the Board concludes that the current laws and regulations have been complied with and a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, to include by triggering the Secretary's duty to assist. Shade, 24 Vet. App. at 118. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). I. Bilateral hearing loss The RO denied the Veteran's claim for service connection for bilateral hearing loss in a February 2000 rating decision. In that decision the RO noted that the evidence failed to establish that the Veteran had hearing loss for VA purposes. The Veteran filed a timely notice of disagreement and substantive appeal, however, he later withdrew his appeal in September 2002 at a Board hearing, prior to the promulgation of a decision by the Board. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201. Therefore, the February 2000 rating decision is final. The Veteran filed an application to reopen his claim for service connection for bilateral hearing loss in October 2008. The RO issued a rating decision in July 2009, denying the Veteran's claim due to a lack of new and material evidence. The Veteran then submitted a timely substantive appeal in January 2011. Of record at the time of the February 2000 rating decision was the Veteran's service treatment records and a VA examination. Review of the evidence of record shows that the Veteran did not have a diagnosis of hearing loss for VA purposes at that time. The evidence received since the final February 2000 rating decision includes testimony at the Veteran's August 2015 hearing that his hearing loss has worsened since his December 2008 VA examination. As above, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus, 3 Vet. App. at 513. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran's claim for service connection for bilateral hearing loss as the Veteran's lay statements indicate there may now be a current disability. However, in regard to the merits of the claim, the Board finds that further development is necessary prior to reaching a decision. II. Hypertension The RO initially denied the Veteran's claim for service connection for hypertension in a March 2002 rating decision. In that decision the RO noted that the evidence failed to show a diagnosis of hypertension in service or immediately after service. The Veteran was notified of the decision and his appellate rights, but he did not appeal nor submit evidence within one year. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the March 2002 rating decision became final. The Veteran then submitted a statement and a signed medical release form regarding his hypertension in January 2004. The RO issued a rating decision in November 2005, denying the Veteran's claim. Specifically, the RO noted that an August 2005 VA examination report found that hypertension was not a complication of hypothyroidism, therefore, the RO found that the evidence did not show that hypertension was related to the Veteran's service connected hyperthyroidism, and there was no evidence of the disability during military service. The Veteran was notified of the decision and his appellate rights, but he did not appeal nor submit evidence within one year. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the November 2005 rating decision is final. The Veteran then submitted a statement regarding a claim for hypertension in March 2007 correspondence with VA. The RO denied the Veteran's claim in a July 2009 rating decision, due to a lack of new and material evidence and the Veteran submitted a timely appeal. Of record at the time of the November 2005 rating decision was the Veteran's service treatment records, post service treatment records, and an August 2005 VA examination. Service treatment records were silent as to a diagnosis of hypertension. The August 2005 VA examination found that the condition was less likely than not related to the Veteran's service-connected thyroid disorder. The Veteran's lay statements were that his hypertension was related to his service-connected hyperthyroidism (Grave's disease). The evidence received since the final November 2005 rating decision includes additional testimony from the Veteran that his hypertension may be caused or aggravated by his thyroid disorder, a pulmonary disorder, an endocrine disorder, and/or his diabetes mellitus. The Veteran has also testified that while on active duty, he was told by a doctor that his hypertension may be related to his Grave's disease. Finally, the Veteran also testified that he began experiencing symptoms of high blood pressure while on active duty, to include headaches. As above, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus, 3 Vet. App. at 513. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran's claim for service connection for hypertension. However, in regard to the merits of the claim, the Board finds that further development is necessary prior to reaching a decision. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened. REMAND The Board finds that a remand is necessary in this case for further development. With regard to the Veteran's bilateral hearing loss claim, the first requirement for service connection is the existence of a current disability. Although the VA examination in December 2008 found that there was no hearing loss for VA purposes, the Veteran has testified that his hearing has worsened since that time. He has also offered testimony regarding exposure to loud noise while in service. As such, the Board finds that the Veteran should be afforded a new examination. The Veteran has also offered testimony that he experienced symptoms of hypertension while in service and that his hypertension may be caused by or aggravated by his thyroid disorder, a pulmonary disorder, an endocrine disorder, and/or his diabetes mellitus. The Veteran's medical records show that he has been diagnosed with diabetes mellitus and a thyroid disorder. The Board also notes that in July 2009 the RO increased the Veteran's disability evaluation for his service-connected hyperthyroid disorder due to a worsening of that condition. As such, the Veteran should be afforded a new VA examination. Finally, the Veteran should also be afforded a VA examination in connection with his sleep apnea claim. The Veteran's service treatment records report difficulty sleeping on several occasions during active duty service, to include in August 1972 and in November 1995. The Veteran has also offered testimony that his sleep apnea is caused or aggravated by his service-connected thyroid disorder, and/or his diabetes mellitus or hypertension. As such, a VA examination is required for the Veteran's sleep apnea disorder claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board also notes that the Veteran's sleep apnea claim may be potentially affected by his hypertension claim that is remanded herein. Issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the issue being remanded and referred in this decision is necessary before the Board may provide a decision regarding the sleep apnea claim. Finally, the Board notes that the claims file may not contain complete medical records. First, the Veteran testified at his August 2015 hearing that he was continuing to receive treatment from Wilford Hall, from his separation in 1999 to as recent as 2015. He had also submitted a signed medical release for post-service records from Wilford Hall, as well as Kelly Air Force Base, in connection with his claims. The Veteran's testimony also included statements that he had been treated several times, post service, at an emergency room for hypertension as well as in the emergency room and cardiology department at Wilford Hall while in service. These records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these 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 and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include Wilford Hall (to include any emergency and cardiology department records during service and all post-service records), Kelly Air Force Base, the San Antonio Military Medical Center, and any additional emergency room records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file, to include all updated VA medical records. All information obtained must be made part of the paper or electronic file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the nature and etiology of any bilateral hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner must opine as to whether it is at least as likely as not any diagnosed bilateral hearing loss is causally or etiologically related to the Veteran's military service. 4. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. First, the examiner must opine as to whether it is at least as likely as not any diagnosed hypertension is causally or etiologically related to the Veteran's military service, to include any symptomatology therein. Second, the examiner must also provide an opinion regarding whether any diagnosed hypertension is caused or aggravated by the Veteran's service-connected disorders together, which include hyperthyroidism (Grave's disease), and/or whether any diagnosed hypertension is caused or aggravated by the Veteran's pulmonary disorder, endocrine disorder, and/or diabetes mellitus. 5. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the nature and etiology of any sleep apnea disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. First, the examiner must opine as to whether it is at least as likely as not any diagnosed sleep apnea is causally or etiologically related to the Veteran's military service, to include any symptomatology therein. The examiner must specifically discuss the Veteran's in service reports of difficulty sleeping in his or her opinion. Second, the examiner must also provide an opinion regarding whether any diagnosed sleep apnea is caused or aggravated by the Veteran's service-connected disorders together, which include hyperthyroidism (Grave's disease), and/or whether any diagnosed sleep apnea is caused or aggravated by the Veteran's hypertension and/or diabetes mellitus. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. 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 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs