Citation Nr: 1743167 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 11-17 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim of service connection for hypertension. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for hearing loss disability. 5. Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Veteran's Daughter ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to May 1967. In November 2013, the Veteran died. The Appellant claims as the Veteran's surviving spouse, and has been accepted as a substitute claimant for purposes of processing the claim to completion pursuant to 38 U.S.C.A. § 5121A (West 2014). See March 2017 VA Memorandum. This case comes to the Board of Veterans' Appeals (Board) on appeal from October and December 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut and a May 2012 rating decision issued by the RO in St. Petersburg, Florida. During the appeal, jurisdiction transferred to the RO in Philadelphia, Pennsylvania. In June 2017, the Appellant and her daughter testified at a hearing before the undersigned Veterans Law Judge in St. Petersburg, Florida. A written transcript of this hearing has been prepared and associated with the evidence of record. The issue of hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a November 2005 rating decision, the RO denied service connection for hypertension. The Veteran was notified of his appellate rights, but did not express disagreement or submit new and material evidence within one year. 2. The evidence received since the November 2005 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. 3. In a November 2005 rating decision, the RO denied service connection for hearing loss disability. The Veteran was notified of his appellate rights, but did not express disagreement or submit new and material evidence within one year. 4. The evidence received since the November 2005 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for service connection for hearing loss. 5. Hypertension is related to active duty. 6. Right knee traumatic arthritis is related to active duty. 7. Hearing loss disability is attributable to service. CONCLUSIONS OF LAW 1. The November 2005 rating decision by the RO that denied entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 2. New and material evidence has been received to reopen the claim of service connection for hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The November 2005 rating decision by the RO that denied entitlement to service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 4. New and material evidence has been received to reopen the claim of service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 5. Hypertension was incurred in service. 38 U.S.C.A. § 1110 (West 2014). 6. Right knee traumatic arthritis was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.102 (2016). 7. Hearing loss disability was incurred in service. 38 U.S.C.A. § 1110. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). As the Board's decision to reopen the Appellant's claim of entitlement to service connection for hearing loss is completely favorable, no further notice and assistance is required to comply with the VCAA and implementing regulations regarding this issue. However, consideration of the merits of the issue is deferred pending additional development consistent with the VCAA. In light of the favorable decision regarding the other issues on appeal in this case, further discussion as to whether VA has met its duties to notify and assist is not necessary. II. New and Material Evidence In November 2005, the RO issued a rating decision denying, in pertinent part, service connection for hearing loss, because the evidence of record did not show a current hearing disability, in service hearing loss, or a nexus between the claimed current hearing loss and his service. Similarly, the decision denied, in pertinent part, service connection for hypertension, because the evidence of record did not show hypertension existed during service or within one year of separation from service. The Veteran was advised of the decision and his appellate rights. However, he did not appeal or submit new and material evidence within one year. Therefore, the November 2005 decision is final. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2016). The U.S. Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110, 116-17 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade, 24 Vet. App. at 120. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the May 2005 rating decision, the record contained the Veteran's service treatment records, VA treatment records, service personal records and an application for compensation. Medical history from 2004 and 2005 VA treatment records indicate the Veteran was diagnosed with hypertension in 2001. In a June 2011 statement, the Veteran reported that after returning from Vietnam (April 1967), he was diagnosed with high blood pressure and has been taking blood pressure medication for as many years as he can remember. He further stated that his first post-Vietnam recollection of high blood pressure was at a physical given to him at a VA facility sometime after May, 1967 and probably no later than 1968. As the Veteran's report of being diagnosed with high blood pressure shortly after separation from service was not previously before VA, it is new and material under 38 C.F.R. § 3.156(a) (2016). Similarly, a September 2010 VA examination, in which the Veteran was found to have sensorineural hearing loss, was not previously before VA and is also new and material under 38 C.F.R. § 3.156(a) (2016). Accordingly, the Veteran's claims of service connection for hypertension and hearing loss are reopened. III. Service Connection i. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2016). In the instant case, the Veteran's service records confirm that he served on active duty in Vietnam and his exposure to herbicide agents is thus presumed. However, none of the Veteran's claimed disabilities are eligible for presumptive service connection. Thus, the regulations pertaining to presumptive service connection based on exposure to herbicides are not applicable to this appeal. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. That notwithstanding, the unavailability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Service connection for the Veteran's claimed disabilities as due to exposure to herbicides has been considered on a direct service connection basis. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2014). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood i.e. it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence is an onerous standard. Laposky v. Brown, 4 Vet App 331, 334 (1993). In the instant case, upon entrance, an examiner wrote that the Veteran hurt his right knee in an automobile accident in 1955 or 1956. However, upon examination the examiner did not identify any abnormalities related to the Veteran's knee or note that the Veteran presently had a knee disability. The examiner recording the history of a preservice right knee injury does not constitute a notation for the purposes of the presumption of soundness. See 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Furthermore, the Veteran repeatedly contended that he did not hurt his knee in that accident and was never treated for a knee injury related to the accident. The Board notes that while in service, the Veteran reported fracturing his ankle, as opposed to his knee, around the time same as this automobile accident. In light of this, clear and unmistakable evidence does not exist to rebut the presumption of soundness. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ii. Hypertension The Veteran contended his hypertension was caused by exposure to an herbicide agent or due to his service-connected posttraumatic stress disorder (PTSD). A review of the record reveals several news articles and pieces of literature discussing increased rates of hypertension amongst individuals exposed to Agent Orange and those with PTSD. The Board will focus its attention on exposure to herbicides. The Veteran's service personal records indicate he separated from service less than two weeks after returning from Vietnam. As noted above, the Veteran reported that he was diagnosed with high blood pressure (hypertension) shortly after separation from service. The Veteran reported he did not know which VA facility he went to, but the Veteran lived in Connecticut and believed it was the facility closest to him at the time. The evidence of record does not contain treatment records from that time. The Veteran reported he attempted to get records from private providers from decades prior, but was advised they did not keep medical records beyond seven years. Additionally, in a July 2011 letter, VA Connecticut Healthcare System - West Haven informed the Veteran that they have no records on file dated for 1967 and 1968. Despite the lack of corroborating medical evidence, the Veteran was competent to report he was diagnosed with high blood pressure shortly after separation and has been taking medication. Upon VA examination in May 2012, the Veteran was found to have hypertension. The examiner opined the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's PTSD. However, the examiner did not give on opinion on whether the Veteran's PTSD aggravated his hypertension. Furthermore, the examiner did not provide an opinion as to whether the Veteran's hypertension was incurred in or caused by an in-service injury, event or illness e.g. exposure to an herbicide agent. VA provided no other compensation and pension examination with regard to the Veteran's hypertension. A physician who treated the Veteran, Dr. N.S., provided multiple opinions with regard to the Veteran's hypertension, including one conclusory opinion which is of no value to the Board. However, in an opinion from May 2013, Dr. N.S. opined that it was very likely that PTSD and/or Agent Orange exposure contributed to the Veteran developing ongoing hypertension. In support of this, Dr. N.S. noted that the condition developed shortly after military service, while the Veteran was still quite young. Based on a review of the record, the Board finds that service connection for hypertension on a direct basis is warranted. The May 2013 medical opinion of Dr. N.S. is most probative in this regard. The Board has considered the Veteran's lay assertions and medical evidence of record. Although the May 2012 VA examiner provided a negative nexus opinion regarding hypertension, the examiner only addressed service connection on a secondary basis. Additionally, Dr. N.S. provided credible support for his opinion. Although the support provided by Dr. N.S. is limited, it is buttressed by the articles and literature of record which discuss a possible link between exposure to herbicide agents and hypertension. Furthermore, there is little evidence favoring a finding against the claim on a direct basis. The Board notes VA records from 2004 indicate the Veteran was diagnosed with hypertension in 2001, but there is no explanation where this information came from. If it came from the Veteran, the Board accepts the possibility that at that time the Veteran was unware that there was no difference between hypertension and high blood pressure. For these reasons, the preponderance of the evidence supports the claim on a direct basis. In reaching this determination, the record establishes that hypertension was suspected during service. iii. Right knee The Veteran was assessed as having traumatic arthritis of the right knee. See March 17, 2010 VA treatment notes. He contended his right knee traumatic arthritis was due to trauma incurred in service, specifically from running for weeks in combat boots on hard surfaced roads. A review of the Veteran's service treatment records reveal the Veteran was seen multiple times due to knee pain. In August 1963, the Veteran reported that when his leg was straight there was a constant dull ache, and when flexing, there was sharp knee pain. The examiner found mild tenderness over the popliteal area, but no swelling or crepitation. The following month the Veteran's knees still hurt. An x-ray appears to have been considered to rule out traumatic arthritis, but the service records do not contain an x-ray from this time. In October 1963, the Veteran's knees continued to hurt when bending and the examiner noted there was some question of traumatic arthritis. An x-ray was taken of both knees. The radiographic report stated no definite bone, joint, or tissue abnormality was identified and no fracture or dislocation was seen. In November 1963, the Veteran again reported knee pain, this time after heavy exercise. The Veteran's service separation examination report does not identify any abnormalities except scars, none of which were on the Veteran's right knee . The Veteran found it interesting that there was no mention of a scar on his right knee, as he reported that he obtained the scar in service. See June 2011 Appeal to Board. The Veteran reported this occurred when his right knee collapsed as he ran to a command bunker to activate a warning siren at the onset of a mortar attack. He also reported he was treated by a medic at a nearby Engineer Unit. Although the Veteran's service treatment records do not reflect such treatment, an abstract of service from the treatment records do reflect time with an Engineer Company. Furthermore, the Veteran's spouse testified that when she saw the Veteran, while he was on rest and relaxation from Vietnam, he had a pretty nasty gouge on his knee and that he did have a nasty scar on his knee. The Board finds the Veteran and his surviving spouse both competent and credible in reporting the existence and source of a scar on the Veteran's right knee. On VA examination in December 2010, the Veteran was found to have degenerative joint disease of both knees with the right being greater than the left. The examiner opined this was less likely as not caused by or a result of service. In support of this, the examiner stated that the Veteran's service treatment records document one episode of bilateral knee pain which was diagnosed as a strain, and that x-rays of both knees were normal. The examiner also noted that the separation exam was silent for knee problems and that there is no medical documentation of chronic knee problems until a 2006 letter from a private orthopedic physician. The Board notes that a review of the evidence of record does not reveal a 2006 letter. Notably, the RO did not cite to, or list as evidence, a 2006 letter when it made its December 2010 rating decision on hypertension. Additionally, as detailed above, the Veteran's service treatment records detail more than one episode of knee pain. Furthermore, the examiner did not take into account the Veteran's lay statements. See Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). In a June 2010 statement, the Veteran reported that in August 1963 he found himself unable to run or walk without severe pain in his knees. He also reported that he was told by a doctor that he had traumatic arthritis in his knees from weeks of running in combat boots on the hard surfaced roads at Aberdeen Proving Ground. Furthermore, the Veteran reported that since that time he had not been able to run without pain in his knees, so he had not run any significant distance since then. In January 2009 and May 2010, the Veteran's treating physician, Dr. J.O., read right knee x-rays and found no evidence of traumatic abnormality and that the Veteran had varus degenerative joint disease of the right knee. Dr. J.O. specifically noted in the May 2010 reading that there was no evidence of acute abnormality. Also in May 2010, Dr. J.O. wrote that the Veteran's "knee pain and findings are consistent with his longstanding history of injury back in his military days." Dr. J.O. also noted that the Veteran had no other history of trauma since that time. On review, the claims folder contains medical opinions both for and against the claim. The Board places some weight on both the December 2010 VA opinion and the opinion of Dr. J.O., provided in May 2010. Dr. J.O.'s opinion provided some, but limited, rationale; and as noted above, the VA examiner provide rationale, but appears to have relied on evidence that is not of record and, importantly, does not appear to taken into account pertinent evidence including episodes of knee pain in the service treatment records and the Veteran's lay statements. Although a remand for further medical opinion could be accomplished, the Board will not remand for negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); but see Douglas v. Shinseki, 23 Vet. App. 19 (2009). Considering the Veteran's contentions, the lay evidence and medical evidence of record, the Board finds the weight of competent, credible and probative evidence to be in relative equipoise in showing that the Veteran's right knee traumatic arthritis was as likely as not incurred in service. Resolving all doubt in the Veteran's favor, the Board finds that the medical and lay evidence supports his claim for entitlement to service connection for right knee traumatic arthritis. iii. Hearing Loss Disability The Veteran has appealed the denial of service connection for hearing loss disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. The Board is aware of a negative nexus opinion. However, the record establishes that there was a significant change at 4000 Hertz during service. In addition, it does not appear that anyone converted the results from ASA to ANSI standards, thus calling into question, the adequacy of the opinion. Based upon the service records, his report of noise exposure during service (an attack) and the facts and circumstances consistent with service, the Board shall not remand for another opinion. 38 U.S.C.A. § 1154. We have doubt and such doubt is resolved in favor of the Veteran. ORDER The applications to reopen claims for service connection for hearing loss disability and hypertension are granted. Entitlement to service connection for hypertension on a direct basis is granted. Entitlement to service connection for right knee traumatic arthritis is granted. Service connection for hearing loss disability is granted. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs