Citation Nr: 1802260 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-07 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for erectile dysfunction (ED). 2. Entitlement to service connection for ED, to include as due to the service connected diabetes mellitus, Type II. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for peripheral neuropathy. 4. Entitlement to service connection for peripheral neuropathy, to include as due to the service connected diabetes mellitus, Type II. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for Hepatitis C. 8. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970, from November 1970 to November 1976, and from January 1980 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that while the Philadelphia, Pennsylvania RO issued the rating decision on appeal, the Cleveland, Ohio RO has jurisdiction over the claim. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. A transcript of the hearing is of record. The issues of entitlement to service connection for (1) ED; (2) peripheral neuropathy; and (3) Hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On September 8, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran with his authorized representative, that a withdrawal of the appeal for entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II is requested. 2. A December 2007 rating decision denied service connection for loss of libido, claimed as ED due to exposure to Agent Orange or other herbicides, as well as service connection for tinnitus. The Veteran did not appeal and the decision became final. 3. Evidence associated with the claim file since the December 2007 rating decision is relevant and probative. 4. A June 2008 rating decision denied service connection for peripheral neuropathy, previously claimed as numbness in arms/legs. The Veteran did not appeal and the decision became final. 5. Evidence associated with the claim file since the June 2008 rating decision is relevant and probative. 6. Tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The December 2007 rating decision denying service connection for loss of libido, claimed as ED due to exposure to Agent Orange or other herbicides, as well as service connection for tinnitus is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. New and material evidence has been received and the claim for service connection for loss of libido, claimed as ED due to exposure to Agent Orange or other herbicides is reopened. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2017). 4. New and material evidence has been received and the claim for service connection for tinnitus is reopened. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2017). 5. The June 2008 rating decision denying service connection for peripheral neuropathy, previously claimed as numbness in arms/legs is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 6. New and material evidence has been received and the claim for service connection for peripheral neuropathy is reopened. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2017). 7. Tinnitus was incurred in service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In this case, the Board is reopening the issue of entitlement to service connection for ED, peripheral neuropathy, and tinnitus, as well as granting service connection for tinnitus. Accordingly, assuming, without deciding, in regard to these issues that any error was committed by VA in fulfilling its duties to notify or assist, such error was harmless and will not be further discussed. Legal Criteria and Analysis Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Board acknowledges, except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b)(1). Here, the withdrawal of the claim for entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II was made on the record at a September 2017 hearing before the undersigned. The transcript of the hearing serves as written documentation of the withdrawal. Hence, there remain no allegations of errors of fact or law for appellate consideration in regards to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and the claim for entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II is dismissed. New and Material Evidence A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 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). The Board notes that the applicable regulation requires that new and material evidence is evidence that has not been previously submitted to agency decision makers, which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). A. ED and Peripheral Neuropathy The Veteran has sought service connection for loss of libido (erectile dysfunction) and peripheral neuropathy (claimed as numbness in the legs and arms) throughout the years. Most recently, service connection for loss of libido, claimed as ED due to exposure to Agent Orange or other herbicides was denied in a December 2007 rating decision because treatment records did not show that the condition was related to the Veteran's time in service. As to peripheral neuropathy, service connection was most recently denied in a June 2008 rating decision because the evidence did not show a diagnosis of compensable peripheral neuropathy within one year of the Veteran's discharge from service or a diagnosis within one year of his last exposure to herbicides in Vietnam. The Veteran did not appeal either decision and they became final. The Board has made a careful review of the record and finds that new and material evidence has been submitted by the Veteran as to both issues. At the September 2017 hearing, the Veteran, through his representative, indicated that his ED and peripheral neuropathy are due to his service-connected diabetes. The Veteran was not service-connected for diabetes until May 2012 rating decision, after the December 2007 and June 2008 final denials of his loss of libido and peripheral neuropathy claims. This new evidence relates to a nexus between the Veteran's claimed ED and peripheral neuropathy, and his now service connected diabetes mellitus. Thus, this new evidence cures a prior evidentiary defect; namely, the lack of a nexus to service or a service-connected disability. In addition, this new evidence is relevant and probative. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for ED is reopened and in this regard, the Veteran's appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Having determined that new and material evidence has been submitted, the Board can now adjudicate the issues on the merits. However, as is discussed in the remand portion of the decision below, additional development is needed prior to deciding these issues. B. Tinnitus The Veteran filed a claim for entitlement to service connection for tinnitus in July 2007, which was denied in December 2007, because service treatment records showed no complaints of or diagnosis of tinnitus and post-service treatment records did not show evidence of tinnitus related to time in service. The Veteran did not appeal this decision and it is now final based upon the evidence then of record. The Board has made careful review of the record and finds that new and material evidence has been submitted. At the September 2017 hearing, the Veteran directly and through his representative, provided additional detailed evidence about his noise exposure in service, specifically, that he was in multiple fire fights and exposed to loud weapons systems. The Veteran indicated that he started experiencing ringing in in his ears while in service. The Veteran also testified that after service, he worked as a bank teller, in a warehouse mixing paint, and at a military base as a recreational specialist, and that none of these positions had noise exposure that aggravated his tinnitus. Rather, the tinnitus began in service and continued thereafter getting progressively worse. This new evidence cures a prior evidentiary defect; namely, a nexus to service. In addition, this new evidence is relevant and probative. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for tinnitus is reopened and in this regard, the Veteran's appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Having determined that new and material evidence has been submitted, the Board can now adjudicate the issue on the merits and will do so below. Service Connection Veterans are entitled to compensation from the VA, if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1995). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, such as an organic diseases of the nervous system, like tinnitus, may be service connected if incurred or aggravated by service or manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran seeks service connection for tinnitus. Service treatment records reveal normal ears in June 1968, August 1970, September 1976, and November 1979 examinations. September 1967, June 1968, August 1970 reports of medical history indicate ear, nose, or throat trouble, although not hearing loss. Ear, nose, or throat trouble are not indicated on an October 1981 report. A hearing examination from April 1981 suggests some hearing loss. The Veteran testified at the September 2017 hearing that he started getting ringing in his ears while in Vietnam on active duty and it has been consistent since that time. He believes his tinnitus was caused by service to include multiple fire fights and exposure to loud weapons systems. Records support the Veteran's contention that he served in the Republic of Vietnam and his DD-214 shows his primary specialty title as Light Weapons Infantryman. The Board concedes noise exposure in service as his work required him to be around weapons and equipment productive of loud noise. The Veteran was afforded a VA examination in February 2012 at which time he reported that his bilateral tinnitus had its onset about 6-10 years prior and occurs several times a week and lasts for several minutes. Because of this, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. However, the Veteran clarified at the September 2017 hearing that the tinnitus has not always been as strong, but he has experienced a ringing sensation since his service in Vietnam. In addition, as noted above, the Veteran further testified at the September 2017 hearing that after service in Vietnam, he worked as a bank teller, in a warehouse mixing paint, and at a military base as a recreational specialist. The bank teller position did not expose him to loud noises, nor did the recreational specialist position. In the warehouse position, he was mandated to wear hearing protection and did so. Based on the evidence presented, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. In this regard, the Board notes that the Veteran has related that he was exposed to noise in service and that he has experienced tinnitus since service. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Here, we find that the Veteran is competent to report noise exposure and ringing in the ears, and the record supports exposure to loud noise in service. The Board is aware that the February 2012 VA examiner opined that based on the Veteran's representations of his tinnitus, it was less likely than not caused by or a result of military noise exposure, however, the Veteran has since clarified the statements upon which this opinion was based. In addition, the opinion above is weighed against the Veteran's assertions; lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Here, we find that the Veteran's assertions about his noise exposure and tinnitus to be credible. As such, the Board finds that the evidence sufficiently shows the existence of a present disability, an in-service incurrence, and a relationship between the present disability and service. Accordingly, and resolving all doubt in the Veteran's favor, service connection for tinnitus is granted. ORDER The appeal for entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II is dismissed. The application to reopen the claim for entitlement to service connection for ED is granted. The application to reopen the claim for peripheral neuropathy is granted. The application to reopen the claim for entitlement to service connection for tinnitus is granted. Service connection for tinnitus is granted. REMAND The Board finds that further development is needed before final adjudication of the remaining issues on appeal. At the outset, the Board finds that additional records should be added to the file. For example, the record indicates that the Veteran has several periods of active duty service, but the only DD 214 in the claim file reflects the period from November 1970 to November 1976. In addition, service treatment records appear to be missing. The Veteran claims that he suffered a gunshot wound in Vietnam, and this wound is the origin of his Hepatitis C disability. In the January 2012 VA examination, the examiner references the gunshot wound and identifies it as the source of the numbness in the Veteran's left hand. However, the service treatment records are silent as to treatment of a gunshot wound. The Board will remand to obtain additional records and to afford the Veteran a VA examination regarding his claimed Hepatitis C disability. Regarding the issue of service connection for ED, the Board finds that a new examination is required to address the etiology of the Veteran's claimed disability. The Veteran was afforded a VA examination in January 2012 regarding his diabetes mellitus. The examiner indicated that the Veteran's erectile dysfunction was not at least as likely as not due to his diabetes. However, the examiner did not address the issue of aggravation. Another VA opinion regarding the Veteran's diabetes mellitus, obtained in January 2016, states that the Veteran does not have any of the recognized complications of diabetes. However, the record indicates that the Veteran has been treated for ED as recently as January 2017. Given this discrepancy and the need to address aggravation, the Board will remand for a new examination. Similarly, the Veteran was afforded a VA examination in January 2012 regarding his peripheral neuropathy. The examiner noted that the Veteran did not develop symptoms until 9-10 years prior, which predates his 2010 diabetes mellitus type II diagnosis. However, the examiner did not address the issue of aggravation. As indicated above, another VA opinion regarding the Veteran's diabetes mellitus was obtained in January 2016. Again, the examiner stated that the Veteran does not have any of the recognized complications of diabetes. However, the record, including the January 2012 VA examination, indicates that the Veteran has been diagnosed with peripheral neuropathy. Given this discrepancy and the need to address aggravation, the Board will remand for a new examination. Accordingly, the appeal is REMANDED for the following action: 1. Obtain any outstanding service treatment records and military personnel records to include treatment records from the Veteran's service in the Republic of Vietnam and any treatment records regarding a gunshot wound and associate such records with the claim file. All efforts to obtain such records should be documented and included in the claim file. If it is not possible to obtain these records, this must be noted in the claim file. 2. After completing the above, schedule the Veteran for the following examinations: (a) An examination to address the etiology of the Veteran's claimed ED disability, to include as secondary to service-connected diabetes mellitus type II. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's ED was caused by his active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed ED disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's to service-connected diabetes mellitus type II. (b) An examination to address the etiology of the claimed peripheral neuropathy disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed peripheral neuropathy disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein. In addition, the examiner should provide an opinion as to whether it is more likely than not (i.e., a 50 percent or greater probability) that the Veteran's claimed peripheral neuropathy disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's to service-connected diabetes mellitus type II. (c) An examination to address the etiology of the Veteran's claimed Hepatitis C disability. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's Hepatitis C disability was caused by his active duty service or, if preexisting service, was aggravated therein. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file and given a copy of this remand. The examiner should state that a review of the claim file and remand was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. If upon completion of the above action the issue is 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs