Citation Nr: 1642823	
Decision Date: 11/08/16    Archive Date: 12/01/16

DOCKET NO.  14-25 021	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for diabetes mellitus has been received.

2.  Whether new and material evidence to reopen a claim for service connection for a psychiatric disability has been received.

3.  Whether new and material evidence to reopen a claim for service connection for residuals of a pilonidal cyst and surgery has been received.

4.  Whether new and material evidence to reopen a claim for service connection for left ear hearing loss has been received.

5.  Whether new and material evidence to reopen a claim for service connection for a bilateral lower extremity disability has been received.

6.  Entitlement to service connection for a psychiatric disability.

7.  Entitlement to service connection for residuals of a pilonidal cyst and surgery.

8.  Entitlement to service connection for hypertension.

9.  Entitlement to service connection for bilateral hearing loss.

10.  Entitlement to service connection for erectile dysfunction.

11.  Entitlement to service connection for a bilateral knee disability.

12.  Entitlement to service connection for a bilateral neurological disability of the upper extremities.

13.  Entitlement to service connection for a bilateral neurological disability of the lower extremities.

14.  Entitlement to service connection for a back disability.

15.  Entitlement to service connection for a bilateral hip disability.

16.  Entitlement to service connection for hyperlipidemia.

17.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Elwood, Counsel
INTRODUCTION

The Veteran served on active duty from October 1973 to September 1976 and from February 1977 to August 1979. 

This appeal before the Board of Veterans' Appeals (Board) arose from a July 2012 rating decision in which the RO denied the Veteran's petition to reopen a claim for service connection for diabetes mellitus, denied claims for service connection for depression, residuals of a pilonidal cyst and surgery, hypertension, bilateral hearing loss, erectile dysfunction, bilateral enthesopathic changes of the knees, bilateral neuropathy of the upper and lower extremities, degenerative disk disease of the back, a bilateral hip disability, and hyperlipidemia, and denied a claim for a TDIU.  The Veteran filed a notice of disagreement (NOD) later in July 2012 and the RO issued a statement of the case (SOC) in June 2014.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2014.

As explained below, claims for service connection for diabetes mellitus, a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability were previously denied by the RO, and those denials were not appealed.  However, regardless of how the RO has characterized these claims, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the previously denied claims for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate each claim on a de novo basis.  See, e.g., Barnett  v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claims has been received-and, in view of the Board's favorable decision on the request to reopen the claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability-the Board has characterized the appeal as to these matters as reflected on the title page.  

Also as made clear below, the reopened claim for service connection for a bilateral lower extremity disability has been characterized to encompass separate claims for service connection for a bilateral knee disability and a bilateral neurological disability of the lower extremities.

This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (VVA) claims processing systems.

The Board's decisions reopening the claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability, and on the underlying claims for service connection for hypertension, bilateral hearing loss, and hyperlipidemia are set forth below.  The petition to reopen the claim for service connection for diabetes mellitus, as well as the de novo claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, erectile dysfunction, a bilateral knee disability, a bilateral neurological disability of the upper and lower extremities, a back disability, and a bilateral hip disability, and the claim for a TDIU are addressed in the remand following the order; these matters are being remanded to the agency of original jurisdiction (AOJ).  VA will notify the Veteran when further action, on his part, is required.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claims herein decided have been accomplished.

2.  In a February 2005 rating decision, the RO most recently denied the claim for service connection for left ear hearing loss; a timely NOD was filed in January 2006 and the RO issued an SOC in May 2006, but the Veteran did not file a substantive appeal.

3.  In a May 2006 rating decision, the RO most recently denied the claim for service connection for a bilateral lower extremity disability (identified as lower extremity pain) and the petition to reopen the claim for service connection for a pilonidal cyst and surgery; although notified of the denials, the Veteran did not initiate an appeal, and no pertinent exception to finality applies.

4.  In a September 2008 rating decision, the RO most recently denied the petition to reopen the claim for service connection for a psychiatric disability (identified as depression); although notified of the denial, the Veteran did not initiate an appeal, and no pertinent exception to finality applies.

5.  Pertinent to each claim, additional evidence received since the RO's February 2005, May 2006, and September 2008 decisions, respectively, includes evidence that is not cumulative or redundant of the evidence of record at the time of those decisions, that relates to unestablished facts necessary to substantiate the claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability, and that raises a reasonable possibility of substantiating the claims.

6.  Hypertension was not shown in service, was not exhibited within the first post-service years, and is not otherwise shown to be medically- related to the Veteran's service.

7.  Competent, probative medical opinion evidence on the question of whether the Veteran's bilateral hearing loss is the result of in-service noise exposure is, at least, in relative equipoise.

8.  Hyperlipidemia is not a disability for VA benefits purposes.


CONCLUSIONS OF LAW

1.  The February 2005 rating decision in which the RO denied service connection for left ear hearing loss is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 19.32, 20.200, 20.302, 20.1103 (2015).

2.  The May 2006 rating decision in which the RO denied service connection for a bilateral lower extremity disability and continued to deny service connection for a pilonidal cyst and surgery is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 20.302, 20.1103 (2015).

3.  The September 2008 rating decision in which the RO continued to deny service connection for a psychiatric disability is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 20.302, 20.1103 (2015).

4.  As evidence received since the RO's February 2005 rating decision is new and material, the requirements for reopening the claim for service connection for left ear hearing loss are met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

5.  As evidence received since the RO's May 2006 rating decision is new and material, the requirements for reopening the claims for service connection for residuals of a pilonidal cyst and surgery and a bilateral lower extremity disability are met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

6.  As evidence received since the RO's September 2008 rating decision is new and material, the requirements for reopening the claim for service connection for a psychiatric disability are met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

7.  The criteria for service connection for hypertension are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

8.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).

9.  The criteria for service connection for hyperlipidemia are not met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). 

Given the Board's favorable reopening of the claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability and of the underlying claim for service connection for bilateral hearing loss, the Board finds that all notification and development actions needed to fairly adjudicate these matters  have been accomplished.

As for the de novo claims for service connection for hypertension and hyperlipidemia, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, pre-rating letters dated in March and April 2012 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for service connection for hypertension and hyperlipidemia, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  The July 2012 rating decision reflects the RO's initial adjudication of the claims after issuance of the March and April 2012 letters.  Hence, these letters meet Pelegrini's and Dingness/Hartman's content of notice requirements, as well as the VCAA's timing of notice requirement. 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent evidence associated with the claims file consists of the Veteran's service treatment records, Social Security Administration (SSA) disability records, VA treatment records, and private treatment records.  Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative on his behalf.  The Board finds that no further action on any claim, prior to appellate consideration, is required.
 
Notably, the Veteran has not been afforded VA examinations for his claimed hypertension and hyperlipidemia and opinions as to the claimed hypertension and hyperlipidemia have not otherwise been obtained.  However, given the record with respect to each claim, no action to obtain any such examination or opinion is required.
 
VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79   (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.)

The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon, 20 Vet. App. at 83.  There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

As explained below, however, hyperlipidemia is not a disability for VA benefits purposes and there is no competent evidence of any disability associated with hyperlipidemia.  Moreover, there is no competent evidence that the current hypertension may be related to service.  The Veteran has not reported, and the evidence does not reflect, a continuity of symptomatology with respect to his claimed hypertension.  Also, there is no competent medical or lay evidence that the current hypertension may be related to service, and the Veteran has not alluded to the existence of any such evidence.  Hence, VA examinations or opinions for the claimed hypertension and hyperlipidemia are not necessary.  See McLendon, 20 Vet. App. at 83.

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims for service connection for hypertension or hyperlipidemia.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matters decided herein, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

I.  Requests to Reopen

As explained in more detail below, claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability were previously considered and denied.  Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).  

In this case, the Veteran filed a request to reopen his previously denied claims for service connection for a psychiatric disability, residuals of a pilonidal cyst and surgery, left ear hearing loss, and a bilateral lower extremity disability in August 2011.  For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156 (a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83   (1996).  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13   (1992).

A. Psychiatric Disability

In a November 2004 rating decision, the RO denied service connection for alcohol induced mood disorder (claimed as an emotional condition) on the basis that there was no evidence that a neuropsychiatric condition was incurred in service and that the Veteran's alcohol induced mood disorder resulted from his abuse of alcohol.  The RO explained that there was no evidence of any complaints of, treatment for, or diagnosis of a neuropsychiatric condition in the Veteran's service treatment records and that the report of an October 2004 VA psychiatric examination documented a diagnosis of alcohol abuse, rule out dependence and alcohol induced mood disorder.  Service connection for the claimed disability was not warranted because direct service connection was warranted only when a disability was incurred or aggravated in line of duty and was not the result of a veteran's own willful misconduct.  An injury or disease incurred during service was not considered to have been incurred in line of duty if the injury or disease was the result of the abuse of alcohol or drugs.
The Veteran was notified of the November 2004 decision by way of a letter dated on November 23, 2004 and he did not appeal this decision.  Later in November 2004, however, he submitted a written statement (VA Form 21-4138) in which he reported that he received treatment for an emotional condition in service in 1975 and 1979.  Also, an October 2005 VA primary care treatment note was associated with the claims file.  This treatment record reflects that the Veteran was diagnosed as having depression.  As these new records include evidence of a psychiatric disability other than alcohol induced mood disorder (i.e., depression) and treatment for psychiatric problems in service, the Board finds that new and material evidence was received within a year of the November 2004 rating decision and that the decision did not become final as to the denial of service connection for a psychiatric disability.  See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (a)-(b).

The claim for service connection for a psychiatric disability was readjudicated and again denied by way of a May 2006 rating decision.  The Veteran was notified of this decision later in May 2006, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the May 2006 decision.  Hence, the May 2006 decision is final, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105(d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.  As such, the claim for service connection for a psychiatric disability may only be reopened and reviewed if new and material evidence is received with respect to this claim.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).

In a July 2006 rating decision, the RO denied service connection for depression (also claimed as nervousness) on the basis that there was no evidence that such problems were incurred or aggravated in service.  Also, despite the fact that the Veteran claimed that his depression was secondary to diabetes mellitus with renal manifestations, there was no evidence that diabetes was related to service.  The Veteran was notified of the July 2006 decision later in July 2006, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the decision.  Therefore, the July 2006 decision is final, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105(d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.  

In a September 2008 rating decision, the RO found that new and material evidence had not been received to reopen the claim for service connection for depression.  The Veteran was notified of this determination later in September 2008, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the decision.  Therefore, the September 2008 decision is final, and is not subject to revision on the same factual basis.  Id.

Moreover, no additional service records have been received at any time pertinent to the previously disallowed claims for service connection for a psychiatric disability, warranting  readjudication of any of the claims.  See 38 C.F.R. § 3.156(c).

Pertinent new evidence received since the September 2008 denial includes a September 2011 letter from N.A.O. Valentín, M.D..  This additional evidence reflects that the Veteran experiences various psychiatric symptoms (e.g., anxiety, depression, suicidal ideation) and that such symptoms reportedly began in service.  Dr. Valentín opined that it was "more probable than not that [the Veteran's] nervous problem is service connected due to his duties while at service and limitation due to musculoskeletal problems."  Hence, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that the Veteran has a current psychiatric disability which may be related to service.  See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination).  As explained in the remand below, the evidence triggers VA's duty to provide an examination as to the nature and etiology of the Veteran's claimed psychiatric disability.  The evidence is, therefore, new and material, and the claim for service connection for a psychiatric disability is reopened.




B. Residuals of a Pilonidal Cyst and Surgery

The Veteran's claim for service connection for residuals of a pilonidal cyst and surgery was initially denied in a May 1982 rating decision on the basis that this claimed disability pre-existed service and was not aggravated therein.  Specifically, the RO explained that the Veteran's entrance examination revealed a pilonidal cystectomy and that a pilonidal sinus was excised in June 1976.  The surgery in service was a remedial action for the recurrence of the pilonidal cyst.  The Veteran was notified of this determination later in May 1982, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the decision.  Hence, the May 1982 decision is final, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105(d)(3); Bond 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.  As such, the claim for service connection for residuals of a pilonidal cyst and surgery may only be reopened and reviewed if new and material evidence is received with respect to this claim.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).

In a May 2006 rating decision, the RO found that new and material evidence had not been received to reopen the claim for service connection for residuals of a pilonidal cyst and surgery.  The Veteran was notified of this determination later in May 2006, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the decision.  Therefore, the May 2006 decision is final, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105(d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.  

Furthermore, no additional service records have been received at any time pertinent to the previously disallowed claims for service connection for residuals of a pilonidal cyst and surgery, warranting  readjudication of any of the claims.  See 38 C.F.R. § 3.156(c).

Pertinent new evidence received since the May 2006 denial includes Dr. Valentín's September 2011 letter.  He reported in the letter that the Veteran was experiencing pain and altered sensation in the area where his pilonidal cyst was removed in service and that he had problems sitting due to friction of the area with hard surfaces while seated.  Dr. Valentín opined that it was "more probable than not that [the Veteran's] problem is service connected due to time of presentation and procedure done."  This additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that the Veteran has current residuals of a pilonidal cyst and surgery and that the disability may have been aggravated in service.   See Shade, 24 Vet. App. at 110.  The evidence is, therefore, new and material, and the claim for service connection for residuals of a pilonidal cyst and surgery is reopened.

C. Left Ear Hearing Loss

The Veteran's claim for service connection for left ear hearing loss was initially denied in a February 2005 rating decision on the basis that there was no evidence to support any of the elements necessary to award service connection (no medical evidence of any left ear hearing loss related to service).  The Veteran was notified of this decision in April 2005, he submitted a timely NOD with the decision in January 2006, and an SOC was issued in May 2006.

Appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to an appellant.  38 U.S.C.A. § 7105 (a); 38 C.F.R. § 20.200.  A substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.302 (b).

In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final.  38 U.S.C.A. § 7105 (d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32.  The RO did so in this case, as evidenced by the fact that it did not certify to the Board the issue of entitlement to service connection for left ear hearing loss following the May 2006 SOC.

As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim for service connection for left ear hearing loss following the May 2006 SOC, the RO closed the appeal.  The RO did not certify the issue to the Board at that time and no further action was taken by VA to suggest that this issue was on appeal.  Thus, the February 2005 decision is final, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105(d)(3); Bond, 659 F.3d at 1362.  See also Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.  As such, the claim for service connection for left ear hearing loss may only be reopened and reviewed if new and material evidence is received with respect to this claim.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).

Furthermore, no additional service records have been received at any time pertinent to the previously disallowed claim for service connection for left ear hearing loss, warranting readjudication of the claim.  See 38 C.F.R. § 3.156(c).

Pertinent new evidence received since the February 2005 denial includes Dr. Valentín's September 2011 letter and the report of an April 2012 VA audiological examination.  The April 2012 examination report reflects that the Veteran has been diagnosed as having left ear hearing loss as defined by VA.  See 38 C.F.R. § 3.385.  In his September 2011 letter, Dr. Valentín explained that the Veteran was exposed to loud noise associated with military weaponry in service and he opined that it was "more probable than not that [the Veteran's] hearing loss is service connected due to noise exposure."  The additional evidence pertains to elements of the claim that were previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that the Veteran has current left ear hearing loss related to service.  See Shade, 24 Vet. App. at 110.  The evidence is, therefore, new and material, and the claim for service connection for left ear hearing loss is reopened.




D. Bilateral Lower Extremity Disability

The Veteran's claim for service connection for a bilateral lower extremity disability (identified as pain in the right and left lower extremities) was initially denied in a May 2006 rating decision on the basis that there was no evidence to support any of the elements necessary to award service connection (no medical evidence of any lower extremity disability related to service).  The RO explained, in pertinent part, that pain is a not a disability and that complaints of symptoms such as pain or abnormal electromyelogram (EMG) findings are not ratable entities without an established diagnosis.  The Veteran was notified of this determination later in May 2006, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the decision.  Therefore, the May 2006 decision is final, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105(d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.  Hence, the claim for service connection for a bilateral lower extremity disability may only be reopened and reviewed if new and material evidence is received with respect to this claim.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).

Furthermore, no additional service records have been received at any time pertinent to the previously disallowed claim for service connection for a bilateral lower extremity disability, warranting  readjudication of the claim.  See 38 C.F.R. § 3.156(c).

Pertinent new evidence received since the May 2006 decision includes an August 2008 VA primary care treatment note, Dr. Valentín's September 2011 letter, the report of an April 2012 VA knee examination, and the Veteran's SSA disability records.  This evidence documents diagnoses of bilateral enthesopathic changes of the knee joints with arthritis and lower extremity radiculopathy/neuropathy and reports of knee pain since service.  The additional evidence pertains to elements of the claim that were previously found to be lacking and raises a reasonable possibility of substantiating the claim by suggesting that the Veteran has current bilateral lower extremity disabilities related to service.  See Shade, 24 Vet. App. at 110.  The evidence is, therefore, new and material, and the claim for service connection for a bilateral lower extremity disability is reopened.  The claim for service connection for a bilateral lower extremity disability, on the merits, is addressed in the remand below as separate claims for service connection for a bilateral knee disability and a bilateral neurological disability of the lower extremities.

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

However, if a veteran serves 90 days or more of active, continuous service during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including hypertension and organic diseases of the nervous system (e.g., sensorineural hearing loss), become manifest to a compensable degree within a prescribed period post service (one year for hypertension and organic diseases of the nervous system), service connection for the disease may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  This presumption may be rebutted by affirmative evidence to the contrary.  38 U.S.C.A. § 1113; 38 C.F.R. § 3.307 (d). 

With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  38 C.F.R. § 3.303 (b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that the provisions of 38 C.F.R. § 3.303 (b) pertaining to the award of service connection on the basis of continuity of symptomatology apply only to chronic diseases as defined in 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As noted, hypertension and organic diseases of the nervous system are among the diseases listed in 38 C.F.R. § 3.309 (a).

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

A. Hypertension

For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  The term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater and isolated systolic hypertension means systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of 90 mm.  38 C.F.R. § 4.104, DC 7101, Note (1) (2015).

An April 2012 VA primary care treatment note reflects that the Veteran has been diagnosed as having hypertension.  Thus, current hypertension has been demonstrated.

There is no evidence of any complaints of or treatment for hypertension in the Veteran's service treatment records and his September 1976 separation examination was normal other than for a leg scar.  A blood pressure reading of 104/62 was recorded during the separation examination.  The claims file does not include the report of any separation examination associated with the Veteran's second period of service from February 1977 to August 1979.  He has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology with regard to his claimed hypertension.

If a chronic disability, such as hypertension, is shown in service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).  There must, however, be sufficient observations in service to identify the disease entity.  Id.  There is no evidence showing any diagnosed hypertension in service and the Veteran has not otherwise reported that he was diagnosed as having hypertension in service.  Hence, service connection cannot be granted on this basis here.

The objective evidence otherwise indicates that the Veteran's hypertension did not manifest until many years following service.  The earliest post-service clinical evidence of possible hypertension are VA treatment records dated in May 2004 which document blood pressure readings of 156/92.  There is no lay or clinical evidence of any earlier hypertension following service.  The absence of any lay or clinical evidence of hypertension for over two decades after the Veteran's separation from service in August 1979 weighs against a finding that his hypertension was present in service or in the year or years immediately after service.  Hence, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection for hypertension on this basis.  

The Board has reviewed and considered the lay statements provided by the Veteran and his representative, on his behalf.  However, neither the Veteran nor his representative have provided any specific contention as to why it is believed the Veteran's hypertension is related to service.  There is no other medical or lay evidence that the Veteran's hypertension is related to service and neither he nor his representative has alluded to the existence of any such evidence.  Under these circumstances, the Board must conclude that the record does not support a finding that hypertension had its onset in service, had its onset during the first post-service years, or is otherwise related to service.  As such, the claim for service connection for hypertension must be denied. 

In reaching the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and, hence, not helpful in this instance.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102.

B. Bilateral Hearing Loss

Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran contends that his current hearing loss is related to exposure to loud noises associated with military weaponry in service.  Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted.

The April 2012 VA audiological examination report reveals that the Veteran has been diagnosed as having bilateral hearing loss as defined by VA.  See Id.  Thus, current hearing loss has been demonstrated.

The Veteran's certificates of discharge from service (DD Form 214) reflect that his military occupational specialty was a rifleman and that he received the Rifle Sharpshooter Badge and Expert Rifle Badge.  He is competent to report in-service noise exposure.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Further, there is nothing to explicitly contradict his reports and they are not inconsistent with the evidence of record and the circumstances of his service.  Therefore, his reports of in-service noise exposure are credible and in-service acoustic trauma is conceded.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence).

On the question of medical etiology of the current hearing loss, the Board notes that there are conflicting medical opinions with respect to whether the hearing loss is the result of in-service noise exposure.  The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).  

In his September 2011 letter, Dr. Valentín opined that it was likely ("more probable than not") that the Veteran's hearing loss was "service connected due to noise exposure."  He reasoned that prolonged exposure to noises of high intensity causes permanent damage in the inner structures of the ear, resulting in irreversible hearing loss.  The Veteran was exposed to high frequency heavy fire arm noises in service, which was likely ("more probable than not") the cause of his hearing loss.

The audiologist who conducted the April 2012 VA audiological examination opined that the Veteran's hearing loss was not likely (not "at least as likely as not"/"50 percent probability or greater") caused by or a result of service.  She reasoned that although no audiometric tests were found in the claims file after the Veteran's separation from service in August 1979, he first claimed hearing loss in June 2004 (25 years after active service).  It is well established that exposure to high levels of noise causes either immediate hearing loss (such as in cases of noise trauma) or progressive hearing deficits during prolonged periods of exposure.  There was no retroactive hearing effect expected after years of being exposed to noise.  Therefore, the Veteran's current hearing deficit was probably not related to in-service noise exposure.

The September 2011 and April 2012 opinions are both based upon the Veteran's reported history and they are accompanied by specific rationales that are not inconsistent with the evidence of record.  Therefore, these opinions are entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding any issue material to the determination of a matter, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.  See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. 

Given the competent and probative evidence of record, the Board finds that, at the very least, the evidence is in relative equipoise as to whether the Veteran's current hearing loss is the result of noise exposure in service.  Resolving all reasonable doubt on the medical nexus question in the Veteran's favor, the Board concludes that the criteria for service connection for the diagnosed bilateral hearing loss are met.

C. Hyperlipidemia

In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C.A. § 1131 as requiring the existence of a present disability for VA compensation purposes).

To be present as a current disability, there must be evidence of the condition at some time during the claim period.  Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).

The Veteran seeks service connection for hyperlipidemia (elevated cholesterol levels) and post-service treatment records document hyperlipidemia.  The Board notes, however, that a disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself.  See Allen v. Brown, 7 Vet. App. 439 (1995).  By definition, hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglycerides and hypercholesterolemia (high cholesterol).  Dorland's Illustrated Medical Dictionary 903 (31st ed. 2007). Hyperlipidemia is a laboratory test result and not, in and of itself, a disability.  See 61 Fed. Reg. at 20,445  (May 7, 1996). 

Moreover, in this case, the finding of hyperlipidemia is not shown to be associated with any disability-much less one that was incurred in or aggravated by active service.  As such, there is no competent evidence of a current disability upon which to predicate a grant of service connection on any basis, and, hence, no valid claim for service connection.  See, e,g., Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App 141, 144 (1992).  Service connection for hyperlipidemia is, therefore, not warranted.


ORDER

As new and material evidence to reopen the claim for service connection for a psychiatric disability has been received, to this extent only, the appeal as to this matter is granted.

As new and material evidence to reopen the claim for service connection for residuals of a pilonidal cyst and surgery has been received, to this extent only, the appeal as to this matter is granted.

As new and material evidence to reopen the claim for service connection for left ear hearing loss has been received, to this extent only, the appeal as to this matter is granted.

As new and material evidence to reopen the claim for service connection for bilateral lower extremity disability has been received, to this extent only, the appeal as to this matter is granted.

Service connection for hypertension is denied.

Service connection for bilateral hearing loss is granted.

Service connection for hyperlipidemia is denied.


REMAND

In light of the above decisions reopening  claims for service connection, and review of the claims file, the Board finds that further action on the remaining claims on appeal is warranted.

VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A (d) (West 2014); McLendon, 20 Vet. App. at 79; 38 C.F.R. § 3.159 (2015).  The threshold for finding a link between current disability and service is low.  Locklear, 20 Vet. App. at 410; McLendon, 20 Vet. App. at 83.  A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service.  McLendon, 20 Vet. App. at 83.

In this case, Dr. Valentín's September 2011 letter and an April 2012 VA primary care treatment note document findings of depression, back pain with x-ray evidence of multiple degenerative changes in the lower back and coccyx area, and radiculopathy/neuropathy.  Thus, competent evidence of current psychiatric, neurological, and back disabilities have been demonstrated. 

During an October 2008 psychiatric examination with Dr. Rodriguez, the Veteran reported that he began to experience depression in service following the deaths of his brother and sister.  Also, Dr. Valentín explained in a September 2011 letter that the Veteran's psychiatric symptoms started in service when he was having problems completing his physical test due to back problems.  He became frustrated when he was unable to physically perform  as he used to and he was under a lot of stress due to the way that he was treated in service.  He was the object of racial prejudice and experienced conduct problems with his superiors.  Dr. Valentín opined that it was "more probable than not that [the Veteran's] nervous problem is service connected due to his duties while at service and limitation[s] due to his musculoskeletal problems."

With respect to the claimed back and neurological disabilities, Dr. Valentín reported in his September 2011 letter that the Veteran injured his back in service when he fell down a hill with his full pack.  He not only received a direct impact, but also experienced stress at the spinal column which causes inflammatory changes that promote degenerative changes in the long term.  All of this causes loss of correct alignment and loss of curvature of spinal lordosis, putting more stress on one side of the vertebra than the other.  As a consequence, one could present with disc bulging and herniation with degenerative problems.  This also brings problems of radiculopathy and neuropathy.  Dr. Valentín concluded that the Veteran developed back problems that are "more probable than not service connected secondary to his injury while at service."

In the alternative, the Veteran has also claimed exposure to water contaminated with volatile organic compounds (VOCs) at Camp Lejeune.  His DD 214 pertaining to his period of service from October 1973 to September 1976 references service at Camp Lejeune.  VA's Adjudication Procedures Manual, M21-1, Part IV.ii.2.C.5.p (July 15, 2016) contains a non-exclusive list of diseases for which there is limited or suggestive evidence of potential association with exposure to contaminants present in the Camp Lejeune water supply between 1953 and 1987.  Neurobehavioral effects are among those listed diseases.  A VA medical opinion is required if a veteran with verified service is shown to have a manifestation of the disease.

In sum, there is competent evidence of current psychiatric, neurological, and back disabilities, competent medical opinions that these disabilities may be associated with service, and evidence that the claimed psychiatric and neurological disabilities may be associated with exposure to contaminated water in service.  Therefore, VA's duty to obtain examinations is triggered.  See 38 U.S.C.A. § 5103A (d); McLendon, supra; 38 C.F.R. § 3.159.  Such examinations are needed to obtain medical opinions as to the nature and etiology of any current psychiatric, neurological, and back disabilities.

Hence, the AOJ should arrange for the Veteran to undergo VA psychiatric, neurological, and back examinations, each by an appropriate mental health or  medical professional.  The Veteran is hereby notified that failure to report to any scheduled examination(s) without good cause, may result in denial of his claim(s)-in particular, any reopened claim(s).  See 38 C.F.R. § 3.655(a).(b) (2015).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file copy(ies) of any correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent VA medical facility.

As for the bilateral knee claims, the Board notes that the Veteran was afforded a VA knee examination in April 2012 and was diagnosed as having bilateral enthesopathic changes of the knee joints with x-ray evidence of arthritis.  The physician who conducted the examination opined that the Veteran's bilateral knee disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service.  He reasoned that although the Veteran was treated for knee pain in service, the records were silent after service for bilateral knee conditions until VA evaluations in the 2000s.  The Veteran's pain episodes in service were transitory and resolved with the treatment given at the time.  The present findings occurred in recent years at events unrelated to military service.

The April 2012 opinion is insufficient because it is entirely based on the absence of objective evidence of treatment for knee problems for many years following service and does not reflect consideration of the Veteran's reports of a continuity of knee symptomatology in the years since service (see an August 2008 VA primary care treatment note and the Veteran's report during the April 2012 VA examination).  In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination).  Dalton v. Peake, 21 Vet. App. 23 (2007).  Hence, a remand is necessary to obtain an addendum opinion (preferably, from the April 2012 VA examiner) which fully addresses whether the Veteran's current bilateral knee disability is related to service.

Prior to arranging for the Veteran to undergo VA examinations and obtaining opinions in connection with his claims, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding pertinent records.
A review of the claims file reflects that the Veteran has contended that his claimed diabetes is related to exposure to herbicides in service.  Specifically, he reported in a January 2006 statement (VA Form 21-4138) that he was exposed to herbicides while stationed in Korea at the Demilitarized Zone (DMZ) in 1974.

VA has adopted specific procedures to determine whether a claimant was exposed to herbicides along the DMZ in Korea.  VA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 4(c) (August 26, 2016), directs, that where a claimant alleges exposure to herbicides in Korea and the service was not between April 1, 1968 and August 31, 1971 or the service was not in a unit or entity listed in M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 1(l-n), a request will be sent to U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the claimant's exposure to herbicides.  If the claim and available records do not provide sufficient details of the Veteran's Korean DMZ service, a development letter is to be sent to the claimant.  If the claimant fails to provide sufficient information to complete a JSRRC request, the claim will be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist

The Court has consistently held that evidentiary development procedures provided in VA's Adjudication Procedure Manual are binding.  See Campbell v. Gober, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated, as part of its duty to assist, to comply with the applicable M21-1 provisions concerning service-connected death claims and remanding for compliance with that provision and applicable regulations); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1).

The AOJ has not completed the necessary development as required by M21-1 to attempt to verify the Veteran's claimed exposure to herbicides in service.  Such development should be accomplished on remand.

In addition, the Veteran's complete service personnel records may contain information to corroborate his alleged exposure to herbicides in service and to clarify the extent of his service at Camp Lejeune.  Hence, on remand, the AOJ should attempt to obtain a complete copy of the Veteran's Official Military Personnel File.  The AOJ should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

Moreover, the claims file contains VA treatment records from the VA Caribbean Healthcare System dated from September 2001 to June 2012.  A "Disability Report" (Form SSA-3368) included among the Veteran's SSA disability records reflects that he reportedly received treatment for a back disability, a psychiatric disability, and diabetes at the VA Medical Center in San Juan, Puerto Rico beginning in 1985.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the AOJ should obtain from the identified location (and any other identified facility(ies)) all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran.  The AOJ should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

Additionally, the AOJ should give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claims on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  In particular, the Form SSA-3368 included among the Veteran's SSA disability records indicates that he received relevant treatment for a psychiatric disability from Dr. Juarbeortiz and Dr. Cay.  A review of the claims file indicates that the Veteran's complete treatment records from these treatment providers have neither been requested nor obtained.

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015).

The Board notes that as the record currently stands, there is no evidence of a currently diagnosed residual of a pilonidal cyst and surgery or a current hip disability.  As additional VA and private treatment records are being sought upon remand which may document evidence of such current disabilities, the claims for service connection for residuals of a pilonidal cyst and surgery and a bilateral hip disability are also being remanded.

Lastly, the evidence reflects that the Veteran's claimed erectile dysfunction may be secondary to some of his other claimed disabilities (e.g., a psychiatric disability, diabetes mellitus, etc.).  Favorable action on the claim(s) for service connection for such disability(ies) may result in the award of service connection for erectile dysfunction.  Similarly, favorable action on any of the service connection claims which are being remanded may result in the award of a TDIU.  Thus, under the circumstances of this case, the Board finds that the issues of entitlement to service connection for erectile dysfunction and entitlement to a TDIU are inextricably intertwined with the other issues being remanded.  See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183   (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue).  As Board action on the claims for service connection for erectile dysfunction and for a TDIU would be premature, at this juncture, these matters are being remanded, as well.

The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal.  

Accordingly, these matters are hereby REMANDED for the following action:

1.  Obtain a copy of the Veteran's complete Official Military Personnel File.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) (2015) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the file.

2.  Complete all required development to attempt to verify the Veteran's alleged exposure to herbicides in Korea pursuant to M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 4(c) (August 26, 2016).  All such evidentiary development must be documented in the file.

3.  Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include those from the VA Caribbean Healthcare System dated from August 1979 through September 2001 and since June 2012.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) (2015) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the file.

4.  Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record.  

Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) treatment records.  Particularly request authorization to obtain complete treatment records for diabetes mellitus, a psychiatric disability, residuals of a pilonidal cyst and surgery, erectile dysfunction, a knee disability, a neurological disability, a back disability, and a hip disability from Dr. Juarbeortiz and Dr. Cay, as referenced above.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period).
 
5.  If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file.  If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

6.  After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA examination, by a psychiatrist or psychologist, to obtain information as to the nature and etiology of all current psychiatric disability(ies).

The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated mental health professional, and the examination report should include discussion of the Veteran's documented history and assertions.  All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

Based on a review of all pertinent lay and medical evidence, the examiner should clearly identify all psychiatric disability(ies) currently present, or validly present at any point pertinent to the August 2011 claim (even if now asymptomatic or resolved):

Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability (a) had its onset during either period of active service; (b) for any current psychosis, had its onset during the first post-discharge year following either period of active service; (c) is the result of any in-service psychiatric stressors reported by the Veteran; (d) is related to any of his reported psychiatric symptoms in service; (e) is the result of exposure to water contaminated with VOCs at Camp Lejeune; or (f) is otherwise the result of a disease or injury incurred in service.

In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include Dr. Valentín's September 2011 letter and the Veteran's reports of psychiatric symptoms in service.

The examiner is advised that the Veteran is competent to report his own symptoms, and that his assertions in this regard must be considered in formulating the requested opinion.  If lay assertions in any regard discounted, the examiner should clearly so state, and explain why. 

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

7.  After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current neurological disability of the upper and lower extremities.

The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

Based on a review of all pertinent lay and medical evidence, the examiner should clearly identify any neurological disability(ies)  affecting each upper and lower extremity currently present, or validly present at any point pertinent to the August 2011 claim (even if now asymptomatic or resolved):

Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability (a) had its onset during either period of active service; (b) had its onset during the first post-discharge year following either period of active service; (c) is the result of the Veteran's reported back injury from a fall in service; (d) is the result of exposure to water contaminated with VOCs at Camp Lejeune; or (e) is otherwise the result of a disease or injury incurred in service?

In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include Dr. Valentín's September 2011 letter and the Veteran's reported back injury from a fall in service.

The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his assertions in this regard must be considered in formulating the requested opinion.  If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

8.  After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current back disability(ies).

The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

Based on a review of all pertinent lay and medical evidence, the examiner should clearly identify all back disability(ies) currently present, or validly present at any point pertinent to the August 2011 claim (even if now asymptomatic or resolved):

Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability (a) had its onset during either period of active service; (b) for any current arthritis, had its onset during the first post-discharge year following either period of active service; (c) is the result of the Veteran's reported back injury from a fall in service; or (d) is otherwise the result of a disease or injury incurred in service?

In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include Dr. Valentín's September 2011 letter and the Veteran's reported back injury from a fall in service.

The examiner is advised that the Veteran is competent to report his own symptoms, and that his assertions in this regard must be considered in formulating the requested opinion.  If lay assertions in any regard discounted, the examiner should clearly so state, and explain why. 

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

9.  After all records and/or responses received from each contacted entity have been associated with the file, arrange to obtain from the examiner who conducted the April 2012 VA knee examination an addendum opinion regarding the etiology of the Veteran's current bilateral knee disability.

If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the file, and arrange to obtain a medical opinion from another appropriate physician based on claims file review (if possible).  Only arrange for the Veteran to undergo further examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.

The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of the REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions.

Based on a review of all pertinent lay and medical evidence, the physician should clearly identify all knee disability(ies) currently present, or validly present at any point pertinent to the August 2011 claim (even if now asymptomatic or resolved):

Then, with respect to each such diagnosed disability, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability (a) had its onset during either period of active service; (b) for any current arthritis, had its onset during the first post-discharge year following either period of active service; (c) is the result of the Veteran's knee problems in service; or (d) is otherwise the result of a disease or injury incurred in service?

In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include all instances of treatment for knee problems documented in the Veteran's service treatment records and the Veteran's competent assertions that there has been a continuity of knee symptoms in the years since service.  If the Veteran's assertions in any regard are discounted, the physician should clearly so state, and explain why.

Complete, clearly-stated rationale for the conclusions reached, must be provided.

10.  If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility.

11.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268, 271   (1998).

12.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal.

If the Veteran fails, without good cause, to report to any examination(s) scheduled in connection with any reopened claim(s), in adjudicating the claim(s) apply the provisions of 38 C.F.R. § 3.655(b), as appropriate.

Otherwise, adjudicate each claim in light of all pertinent evidence (to particularly include that added to the VBMS/Virtual VA file(s) since the last adjudication), and all legal authority.

13.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. 

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit(s) requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369  (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court 



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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 



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs