Citation Nr: 1800495 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 10-45 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for a bilateral hearing loss disability. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes mellitus. 3. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. A. Abarr, Associate Counsel INTRODUCTION The Veteran had active service from April 1967 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2008 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claim file. The record also reflects that the Veteran was previously represented by a private attorney who withdrew from representation in April 2016. The Veteran has not appointed another representative since that time. While this appeal has been pending, the RO made a determination in an April 2017 rating decision awarding the Veteran service connection for diabetic neuropathy of the sciatic nerve for the right and left lower extremities at an evaluation of 10 percent each, effective May 6, 2009. Also in that rating decision, the Veteran was awarded service connection for diabetic neuropathy of the femoral nerve for the right and left lower extremities at an evaluation of 10 percent each, effective May 6, 2009. The Veteran has not appealed that rating decision, and so jurisdiction remains with the RO with respect to those issues. The issues of entitlement to service connection for erectile dysfunction as well as the disability rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a July 1985 decision, the Board denied service connection for bilateral hearing loss. The decision is final. 2. The evidence submitted since the Board's denial of 1985 is cumulative. CONCLUSIONS OF LAW 1. The July 1985 Board decision that denied entitlement to service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7104 (2012). 2. Evidence received since the July 1985 decision which denied service connection for a bilateral hearing loss disability is not new and material, and the claim is not be reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claim file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material Evidence A previously finally denied claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). 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 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, it to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). It is noted that 38 C.F.R. § 3.156(c) provides that if VA receives or associates with the claim file relevant official service department records that existed and had not been associated with the claim file when VA first decided the claim, VA will reconsider the claim. The Veteran was originally denied service connection for a bilateral hearing loss disability in a February 1984 rating decision. He appealed the denial to the Board, and in a July 1985 decision, the Board continued to deny service connection for a bilateral hearing loss disability. The Board's decision is final. 38 U.S.C.A. § 7104. In May 2006, the Veteran filed an application to reopen his claim for service connection for a bilateral hearing loss disability. In a February 2008 rating decision, the RO concluded that the additional evidence submitted was not new and material, and therefore the claim for service connection for a bilateral hearing loss disability could not be reopened and remained denied. At the outset, the Board notes that in the July 1985 decision, the Board granted service connection for a perforated ear drum. As such, evidence related to the perforated ear drum is irrelevant to the current request to reopen the claim for service connection for bilateral hearing loss disability. Therefore, the decision below will focus on the evidence pertaining to the bilateral hearing loss disability. At the time of the July 1985 Board denial the evidence included service treatment records, post service VA and private records, a VA examination of December 1983, the Veteran's contentions that he incurred a bilateral hearing loss in service due to noise exposure and the ear troubles/infections in service, and lay statements attesting to the Veteran's ear surgeries and ear difficulties in service and thereafter. The basis of the Board's July 1985 denial was that a left ear hearing loss pre-existed service and was not aggravated by service, and a right ear hearing loss disability was not incurred in or aggravated by service. Added to the record since the Board's July 1985 denial are various VA examinations none of which contain a nexus opinion linking the Veteran's hearing loss disability to service; Social Security Administration (SSA) records showing the award of disability benefits based on a psychiatric disability; additional statements from the Veteran associating his current hearing loss disability to noise exposure and ear trouble in service; and additional lay statements attesting to the Veteran's ear trouble in service and thereafter, primarily relating to the ear infections and perforated ear drum. The Board's July 1985 decision is final based upon the evidence then of record. In deciding whether to reopen the previously denied claim, the Board must consider all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. The Board has made a careful review of the evidence of record. In the present claim, the evidence submitted since the Board decision of July 1985 is not new and material as it does not relate to an unestablished fact necessary to substantiate the claim, namely, that the Veteran's bilateral hearing loss disability is related to service. While the Veteran has introduced additional evidence which states that he currently has a bilateral hearing loss disability, this evidence is cumulative since at the time of the prior denial evidence of a hearing loss disability was of record. Further, while the Veteran submitted additional statements and testimony, and lay statements attesting to the noise exposure in service and the ear problems in service and post service, this evidence is also cumulative of that of record at the time of the July 1985 Board denial as there were several similar statements of record at that time. The evidence introduced since the July 1985 Board decision does not show a bilateral hearing loss disability is due to service. Thus, as the additional evidence is cumulative of the evidence of record at the time of the July 1985 Board decision and does not raise a reasonable possibility of substantiating the claim, the request to reopen the claim of service connection bilateral hearing loss disability is denied. 38 C.F.R. § 3.156(a). The Board notes that the electronic claim file shows that in February 2016, STRs pertinent to his hearing loss claim from 1967 through 1970 were added to or scanned into the Veteran's claim file. These, include a Report of Medical History, dated March 31, 1967, notes that the Veteran had left ear conductive type hearing loss prior to his entrance on active duty. A health record note dated May 22, 1969 notes that the Veteran had ear pain and creamy drainage for three weeks, with a history of eardrum surgery for perforated eardrums five months ago. The examiner's diagnostic impression was otitis media with bullous myringitis. An undated Medical Condition - Physical Profile Record notes that he has left ear hearing loss and should not be given hazardous guard duty, but is otherwise medically qualified for duty. While these records were scanned in February 2016, a review of the rating decision and SOC of May 1984 as well as the Board's July 1985 decision all discuss the findings within the STRs. Moreover, all documents state that STRs for the Veteran's service were considered in the denial. Therefore, the Board concludes that while the STRs were scanned and uploaded to the file in February 2016, they indeed were part of the record at the time of the Board's July 1985 denial and therefore a de novo review of the file under 38 C.F.R. § 3.156 (c) based on the association of relevant STRs is not for application. In sum, at the time of the prior denial there was evidence of bilateral hearing loss disability but no nexus to service. Since then, the Veteran has submitted evidence of a bilateral hearing loss disability, but such fact had previously been established and is cumulative. In regard to his assertion as to cause, such is repetitive of his initial claim and is also cumulative. The added evidence is not new and material and the claim is not reopened. ORDER The request to reopen the claim for service connection for bilateral hearing loss disability is denied. REMAND A review of the claim file shows that additional development is needed prior to deciding the issues of the disability rating for PTSD and service connection for erectile dysfunction, to include as due to diabetes mellitus. At the hearing, the Veteran testified he had recently received treatment at the VA for his diabetes mellitus and was pending a new appointment for his diabetes the week of the hearing. A review of the file shows these records have not been associated with the claim file. Therefore, they must be obtained. Further, the Veteran testified at the hearing that his PTSD had worsened since the 2016 VA examination primarily because he had no ongoing treatment. A new examination is needed to assess the current level of severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, the Veteran was afforded a VA examination for his claimed erectile dysfunction in November 2007. At the time, the examiner opined that erectile dysfunction was not caused by the diabetes mellitus as it was probably caused by low testosterone levels and both erectile dysfunction and diabetes mellitus had been diagnosed essentially at the same time. The Board finds a new opinion is needed for various reasons. First, there is no opinion as to whether the service connected diabetes mellitus aggravated the erectile dysfunction. Further, the fact that erectile dysfunction and diabetes mellitus were diagnosed essentially concurrently does not necessarily obviate the possibility that erectile dysfunction was caused by diabetes mellitus. The fact remains that despite being diagnosed concurrently, diabetes mellitus still could have caused the erectile dysfunction. As such, a new opinion is needed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of all outstanding VA treatment records for the Veteran's PTSD, diabetes mellitus and erectile dysfunction. 2. After the above development is completed, the AOJ should arrange for an examination to determine the current level of severity of the Veteran's PTSD. The Veteran's claim file must be reviewed by the examiner in conjunction with the examination and the examination report must state a review of the file was completed. Any indicated tests or studies should be completed. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion that responds to the following: Please identify all impairment associated with the Veteran's PTSD. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 3. After the development in (1) above has been completed, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the diagnosed erectile dysfunction. The claim file should be made available to the examiner for their review and the report should state a review of the file was conducted. After an examination of the Veteran, the examiner should answer the following questions: (a) Is it at least as likely as not that the Veteran's erectile dysfunction was caused by his service connected diabetes mellitus? Please note that a concurrent diagnosis will not be a sufficient rationale. (b) Is it at least as likely as not that the Veteran's erectile dysfunction has been aggravated beyond its natural progression by the service connected diabetes mellitus? A complete rationale for all opinions rendered must be provided. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. All matters remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West 2014). ______________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs