Citation Nr: 1702877 Decision Date: 02/02/17 Archive Date: 02/15/17 DOCKET NO. 13-12 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertension 3. Entitlement to service connection for type II diabetes mellitus (DMII), including as a result of exposure to herbicides (Agent Orange). 4. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, including as a result of exposure to herbicides. 5. Entitlement to service connection for a respiratory disorder, claimed as lung problems with shortness of breath, including as a result of asbestos exposure. 6. Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. He additionally had service as a Naval Reservist through July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2009 and July 2015 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices. The Veteran testified at a hearing before the undersigned in August 2016. A hearing transcript is of record. The Veteran filed a substantive appeal (on VA Form 9), which was received by the Agency of Original Jurisdiction (AOJ) in April 2013. Since then, the Veteran has submitted additional medical evidence in support of his claims for service connection for DMII and peripheral neuropathy without a waiver of AOJ consideration. As the Form 9 addressing the issues on appeal was received after February 2, 2013, however, a waiver of AOJ review of the evidence is not required. See 38 U.S.C. § 7105 (West 2014). The issues of entitlement to service connection for a respiratory disorder and entitlement to a compensable disability rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The AOJ denied entitlement to service connection for hypertension in a June 2006 rating decision, the Veteran did not perfect an appeal of the claim following issuance of a July 2007 statement of the case (SOC), and he did not submit new and material evidence within one year of the AOJ's decision. 2. Evidence received since the June 2006 rating decision and July 2007 SOC is not duplicative or cumulative of evidence of record at that time, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension. 3. The Veteran's hypertension had its onset during active service. 4. The Veteran's current DMII did not have its onset during active service and was not caused by active service, including as a result of herbicide exposure. 5. The Veteran's peripheral neuropathy of the bilateral upper and lower extremities did not have its onset during active service and was not caused by active service, including as a result of herbicide exposure. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2016). 2. Evidence received since the June 2006 rating decision is new and material; and the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The criteria for entitlement to service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 4. The criteria for entitlement to service connection for DMII, including as a result of herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). 5. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, including as a result of herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2006. VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available, pertinent evidence to the matters decided herein has been obtained. VA treatment records and identified private treatment records have been obtained. While review of the record appears to show that additional VA treatment records pertaining to the Veteran's claimed lung disability may be outstanding, there is no indication that VA treatment records pertinent to his diabetes or peripheral neuropathy claims are missing. Additionally, while the Veteran submitted in November 2016 what appears to be a portion of private medical treatment records from East Texas Hematology and Oncology Clinic, The Heart Institute, and Dr. C. L., his primary care provider, which noted treatment for neuropathy and a history of diabetes and included an electrodiagnostic study, VA did not have a duty to obtain additional private treatment records from these providers where he was specifically asked in the October 2006 VCAA letter to submit authorization for VA to obtain records of all private treatment rendered for his claimed diabetes and peripheral neuropathy that his wished VA to obtain. Moreover, as discussed below, the controlling issue with respect to the Veteran's diabetes and peripheral neuropathy claims is whether he was exposed to herbicides during service, not the existence or severity of either claimed disability, and, any additional records from these providers would not be pertinent to establishing the likelihood of such exposure. Based on the foregoing, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board acknowledges that VA has neither afforded the Veteran an examination, nor solicited a medical opinion regarding his claimed diabetes or peripheral neuropathy. Such examination or opinion, however, is not necessary to satisfy the duty to assist in this case. Under 38 U.S.C.A. § 5103A (d)(2), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, evidence establishing an inservice event, injury, or disease, or the case involves a chronic disease that manifested during an applicable presumptive period, and the disability or symptoms may be associated with military service, but does not contain sufficient evidence to make a decision on the claim. Id. Here, the Veteran's claims hinge solely on whether he was exposed to herbicides during service, a non-medical question. He has asserted no other connection between these claimed disabilities and his active service. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. New and Material Evidence The AOJ denied the Veteran's claim of entitlement to service connection for hypertension in a June 2006 rating decision. The Veteran did not perfect an appeal after issuance of a July 2007 SOC that also addressed the issue, and no new and material evidence relevant to the claim was associated with the claims file within one year of issuance of the decision. Cf. 38 C.F.R. § 3.156 (b). The June 2006 rating decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). At the time of the June 2006 rating decision and July 2007 SOC, evidence relevant to the hypertension claim included the Veteran's service treatment records (STRs) and VA treatment records dated through April 2007. Relevant evidence obtained since the July 2007 SOC includes VA treatment records dated through February 2012 reflecting continual treatment for hypertension; a June 2007 VA cardiology examination report, noting the Veteran's report of having a hypertension diagnosis for many years, and being treated with different medications for at least the last 10 years; a June 2008 statement from his treating private physician J. B. M., M.D., stating that the Veteran's hypertension dated back to 1967, as well as an additional October 2009 statement from Dr. M.; a June 2009 statement from the Veteran, noting that he was treated for hypertension during service; the Veteran's April 2013 VA Form 9, noting his contention that he was diagnosed with hypertension during service and that he was denied submarine duty as a result; and the Veteran's August 2016 BVA hearing transcript, which contains his testimony that he was diagnosed with hypertension during service in 1967, that while he was not given medication at that time, he has been treated periodically with medication ever since, and that his hypertension became more severe three to four years after his separation from service. This new evidence was not previously submitted, relates to unestablished facts necessary to substantiate this claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the service connection claim for rhinitis. See Shade, supra. The June 2006 rating decision and July 2007 SOC denied the Veteran's claim based on a lack of evidence of hypertension in service or within one year after separation from service. The new evidence more clearly describes the Veteran's contentions regarding his hypertension during service and includes a medical opinion indicating that his current hypertension began in service, thereby serving to abrogate prior deficiency in the June 2006 rating decision and July 2007 SOC. Thus, the new evidence is new and material and the service connection claim for hypertension is reopened. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A. Hypertension The evidence supports a finding that the Veteran currently suffers from hypertension. The June 2007 VA examination report noted the Veteran's diagnosis of hypertensive heart disease and a September 2012 VA primary care note reflected the Veteran's ongoing treatment for hypertension. Review of the Veteran's STRs reveals that he was assessed with mild labrile systolic hypertension during a July 1967 submarine examination. The Veteran testified during his August 2016 Board hearing that while he was not treated for hypertension at that time, he had been treated for it periodically since. He noted that it became worse about three to four years after his separation from service. VA treatment records associated with the claims file noted the Veteran's elevated blood pressure in May 2005, and indicated his history of treatment for hypertension for five years with medications. Continuing VA treatment records reflect ongoing treatment for the Veteran's hypertension. In his June 2008 statement, the Veteran's treating physician, Dr. M., indicated that he had treated the Veteran's high blood pressure since 1999, and that his high blood pressure dated back to 1967, when he was in the Navy. Given the Veteran's treatment history with Dr. M., and Dr. M.'s familiarity with the Veteran's medical history and his noted hypertension in service, the Board finds that Dr. M.'s statement consists of an adequate medical opinion, etiologically relating the Veteran's current hypertension to his hypertension in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). This evidence, therefore, suffices to establish a nexus between the Veteran's current hypertension and his service. Resolving reasonable doubt in the Veteran's favor; the elements for service connection for hypertension are all demonstrated and service connection is granted. 38 U.S.C.A. § 5107(b). B. Diabetes and Peripheral Neuropathy Service connection may be established on a legal presumption based on exposure to herbicide agents, including Agent Orange, where a veteran served on active duty in the Republic of Vietnam (RVN) during the Vietnam era (from January 1962 to May 1975) and has a certain listed disability, including type II diabetes that becomes manifest to a degree of 10 percent or more any time after service and early onset peripheral neuropathy that has become becomes manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active service; presumably the last day of service in Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii)(iii), 3.309. A veteran who had active naval service in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed to herbicide agents only if he or she served on or visited the Vietnamese landmass or its inland waterways. This presumption does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the "blue water" Navy. See 38 C.F.R. § 3.313 (a); VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute "Service in the Republic of Vietnam" for purposes of 38 U.S.C.A. § 101 (29)(A) ); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's statutory interpretation excluding the "blue water" Navy from presumptive herbicide exposure). In February 2016, in response to a decision of the United States Court of Appeals for Veterans Claims (Court) in Gray v. McDonald, 27 Vet. App. 313 (2015), the VA released updated guidance about which bodies of water in Vietnam constitute inland waterways and thus which Naval service members are appropriately in receipt of the presumption of exposure to herbicides as a result of service in Vietnam. The Court had found that, with respect to Da Nang Harbor, the manner in which VA defines "inland waterways" was both "inconsistent with the regulatory purpose and irrational," and that it was therefore neither reasonable nor worthy of deference. See id. As a result, VA updated its Adjudication Manual, M21-1MR. The applicable provisions of the M21-1 Manual, specifically those provisions defining inland waterways and offshore waters and designating some of the specific locations determined to be within those categories, were modified. The manual reaffirmed that the presumption of exposure to Agent Orange requires evidence establishing duty or visitation within the Republic of Vietnam and that service on offshore waters does not establish a presumption of exposure to Agent Orange. The current manual specifically provides that: Inland waterways are fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the RVN. VA considers inland waterways to end at their mouth or junction to other offshore water features, as described below. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. VBA Manual M21-1, IV.ii.1.H.2.a. Inland waterway service is also referred to as "brown-water" Navy service. Id. By contrast, "off shore waters" are defined as the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b. Service in offshore waters is also referred to as "blue-water" Navy service. Da Nang Harbor is specifically identified as a location considered being within the offshore waters of the Republic of Vietnam. VBA Manual M21-1, IV.ii.1.H.2.c. While the M21-1 Manual is generally not binding on the Board, it is instructive on the definition of inland waterways and offshore waters for the purposes of entitlement to presumptive service connection. See 38 C.F.R. § 19.5 (2016); VBA Manual M21-1, IV.ii.1.H.2. In the instant appeal, the record fails to establish that the Veteran has the requisite service in the Republic of Vietnam to entitle him to a presumption of herbicide exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Review of his service personnel records (SPRs) shows that he served aboard four ships during his service during the Vietnam Era, the U.S.S. Wilhoite, the U.S.S. Camp, the U.S.S. Philip, and the U.S.S. Fletcher. During his August 2016 Board hearing, he reported that while aboard two of his assigned ships, the U.S.S. Wilhoite and the U.S.S. Camp, he spent time anchored in Da Nang Bay. He acknowledged that he did not get off ship while anchored in the bay, but did report that they would send boats from his ships up to the mouth of the river. He also contended that spraying of herbicide could be seen from his ship. VA has promulgated a listing of the Navy ships associated with service in Vietnam and hence exposure to herbicide agents. See VBA Training Letter 10-06 (Sept. 2010); see also VA Manual M21-1. A review of the list, entitled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, updated after the Court's decision in Gray in February 2016, indicates that of the Veteran's assigned ships, only the U.S.S. Wilhoite had crew members that went onto an enemy vessel in the De Sey Ky River in July 1965 and that a landing party from the ship went ashore from Vung Tau Harbor in September 1968. The Veteran's SPRs indicate, however, that he served aboard the U.S.S. Wilhoite from November 1965 to August 1967, outside of the periods where ship crew members were noted to have been potentially exposed to herbicides. While the Veteran has asserted his belief that he was exposed to herbicides during service and reported that spraying of herbicides could be seen from his ship, the Court held in Bardwell v. Shinseki, 24 Vet. App. 36 (2010), that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Nothing in the record otherwise demonstrates the Veteran is qualified to identify herbicides. Moreover, no other basis for possible herbicide exposure is demonstrated by the record. In view of the foregoing, the Board concludes the preponderance of the evidence is against a finding the Veteran was exposed to herbicides while on active duty. Consequently, he is not entitled to a grant of service connection for DMII or peripheral neuropathy pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(e). Given this finding, the Board need not reach a discussion with respect to whether the Veteran's peripheral neuropathy developed within the requisite one-year period following his Vietnam service, nor is discussion necessary with respect to whether the disability potentially developed as secondary to diabetes. See 38 C.F.R. § 3.310 (2016). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As already noted, however, the Veteran has not indicated any other basis for linking his DMII or peripheral neuropathy to service other than the purported herbicide exposure, nor is such otherwise indicated by the record; rather, the evidence shows that DMII was not diagnosed until approximately 2004, and complaints of neuropathy are not noted in the record until April 2016 with a diagnosis noted in September 2016; thus the evidence shows that both disabilities were diagnosed many years after the Veteran's separation from service. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's claimed DMII and peripheral neuropathy of the lower and upper extremities were incurred in or otherwise as a result of his active service; therefore, the claims must be denied. See 38 U.S.C.A. § 5107. ORDER The claim of entitlement to service connection for hypertension is reopened. Entitlement to service connection for hypertension is granted. Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied. REMAND Review of the record reveals that the Veteran was seen for a VA pulmonary consult in December 2012, with a complaint of shortness of breath. Results of a pulmonary function testing were abnormal, indicating possible restriction. The plan was to send the Veteran for a chest x-ray to ascertain any asbestos-related changes, given the Veteran's purported history of asbestos exposure. VA treatment records dated after this December 2012 consult have not been associated with the claims file. See 38 C.F.R. § 3.159. Given the Veteran's noted service as a ship cook on his DD Form 214, and his reported assignments as a fireman and a gunner's mate, and the noted probability of at least minimal asbestos exposure, per the M21-1MR, further development should be completed, including the scheduling of the Veteran for a VA examination if medical evidence of asbestos-related changes is obtained. Following issuance of the July 2015 rating decision that denied entitlement to a compensable disability rating for bilateral hearing loss, the Veteran submitted a timely notice of disagreement with respect to the denial of that claim on an official VA form in August 2015. Before the Board can consider that claim on appeal, however, it is required to remand it for issuance of an SOC. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ must obtain the Veteran's VA treatment records dated since December 2012 from the Houston VA Medical Center, to specifically include the results of any chest x-rays performed since December 2012. 2. Thereafter, the AOJ must ensure that it complies with M21-1MR procedures with respect to the development of the Veteran's claimed respiratory disorder as a result of asbestos exposure. 3. If medical evidence of asbestos-related changes is obtained, the AOJ must schedule the Veteran's for a VA respiratory disorder examination. The examiner must review the claims file in conjunction with the examination. All necessary studies and tests should be conducted. The examiner must provide an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that any current respiratory disorder was incurred during the Veteran's service, or as a result of an in-service disease, event, or injury, to include any probable asbestos exposure. The examiner must provide reasons for all opinions, addressing the relevant medical and lay evidence. Absent such supporting rationale, the opinion will be deemed inadequate. 4. The AOJ must issue a statement of the case with respect to the issue of entitlement to a compensable disability rating for bilateral hearing loss. This issue should not be certified or returned to the Board unless a timely substantive appeal is submitted. 5. If the benefits sought on appeal are not granted in full, the AOJ must issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs