Citation Nr: 1804082 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 17-56 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim for service connection for diabetes mellitus. 2. Whether new and material evidence has been received to reopen the Veteran's claim for service connection for hypertension. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for erectile dysfunction. 6. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from March 1959 to February 1967. This matter comes before the Board of Veterans' Appeals from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois and a March 2015 rating decision of the RO in Milwaukee, Wisconsin. In December 2017, the Veteran filed a VA Form 9, perfecting his appeal regarding the issues of service connection for bilateral hearing loss, retinopathy, bilateral upper extremity neuropathy, tinnitus, and erectile dysfunction, which were denied in the March 2015 rating decision. At present, those issues have not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2017). However, when an appeal is certified to the Board for appellate review and the record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a) (2017). As the required notifications have not been sent in regard to the VA Form 9 filed in December 2017, the Board declines to take any further action on the issues of entitlement to service connection for bilateral hearing loss, retinopathy, and bilateral peripheral neuropathy of the upper extremities at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103 (2017); Gray v. McDonald, 27 Vet. App. 313, 327 (2017) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). However, the Board will take action on the issues of entitlement to service connection for erectile dysfunction and tinnitus even though they have not been certified because it is able to grant both claims. As the benefits are being granted in full, there is no prejudice to the Veteran in deciding these claims at this time. The issue of entitlement to service connection for hypertension to include as due to exposure to herbicide agents is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's claim for service connection for diabetes mellitus was previously considered and denied by the RO in May 2005. This decision was later affirmed by the Board in August 2009. The Veteran did not file a Notice of Appeal to the United States Court of Appeals for Veterans Claims within 120 days of the Board decision. 2. The Veteran's claim for service connection for hypertension was previously considered and denied by the RO in May 2005. The Veteran was notified of this decision and his appellate rights and did not file a Notice of Disagreement relating to the denial of hypertension or submit new and material evidence within one year of the rating decision. 3. The preponderance of evidence reflects that the Veteran's diabetes mellitus was due to his time in service. 4. The preponderance of evidence reflects that the Veteran's erectile dysfunction was caused by or aggravated by his diabetes mellitus. 5. The preponderance of evidence reflects that the Veteran's tinnitus was due to his time in service. CONCLUSIONS OF LAW 1. The August 2009 Board decision that denied the Veteran's claim for service connection for diabetes mellitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2017). 2. The evidence received since the August 2009 Board decision is new and material and the claim for service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The May 2005 rating decision that denied the Veteran's claim for service connection for hypertension is final. 38 U.S.C. § 7105 (c)(2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2017). 4. The evidence received since the May 2005 rating decision is new and material and the claim for service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The requirements for establishing service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The Veteran's erectile dysfunction was proximately due to, the result of, or chronically aggravated by his service-connected diabetes mellitus. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 7. The requirements for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. A. Diabetes Mellitus In a May 2005 rating decision, the RO determined the Veteran's diabetes mellitus was not due to any incident in his military service. The RO determined the Veteran's diabetes could not be presumptively service connected because there was no evidence the Veteran was exposed to herbicide agents. Furthermore, the RO concluded direct service connection was not warranted because there was no indication the Veteran had diabetes in service. The Veteran appealed the denial to the Board. In August 2009, the Board reaffirmed the May 2005 rating decision denying service connection. When a rating decision issued by the RO is affirmed by the Board, that determination is considered final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2017). After the May 2005 rating decision and August 2009 Board decision, service personnel records were obtained. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. Service records related to a claimed in-service event, injury, or disease are relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (2017). New and material evidence is not needed to reopen his previously denied claim and it will be reviewed on a de novo basis. However, in this case, the additional service personnel records are not relevant, as they did not establish the Veteran's service in Vietnam or relate to his diabetes claim. Therefore, the Board finds that the provisions of 38 C.F.R. § 3.156(c)(1)(i) do not apply to the facts of this particular case because the additional service personnel records are not relevant to the claim. In February 2014, the Veteran filed an application to reopen the claim. The evidence received since the August 2009 Board decision includes lay statements from the Veteran, his family, and comrade discussing the Veteran's service in Vietnam. Additionally, the evidence includes a June 2016 opinion relating the Veteran's diabetes mellitus to his in-service exposure to herbicide agents. Presuming the credibility of the new evidence, it is new and material because it relates to the nexus element of the service connection claim. Thus, the Board concludes that new and material evidence has been received to reopen the Veteran's claim for diabetes mellitus. 38 C.F.R. § 3.156(a). B. Hypertension In a May 2005 rating decision, the RO determined that the Veteran's hypertension was not due to any incident in his military service. The RO noted the Veteran was never treated for hypertension while in-service. The Veteran was notified of that decision and his appeal rights; however, he did not file an appeal in relation to hypertension. In general, the rating decisions that are not timely appealed are final. See 38 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Thus, the May 2005 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). As previously stated, additional personnel records were obtained after the May 2005 rating decision. However, these records also did not relate to the Veteran's claim for hypertension. The Veteran also filed to reopen his hypertension claim in February 2014. The evidence received since May 2005 includes reports from the Veteran's doctor relating the Veteran's heart issues back to 1966. Furthermore, as noted above the evidence subsequently submitted includes lay statements noting the Veteran's service in Vietnam. The Board finds that the new evidence triggers the VA's duty to assist by requiring a VA examination and medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the Board concludes new and material evidence has been received to reopen the Veteran's claim for hypertension. 38 C.F.R. § 3.156(a). However, as discussed below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Diabetes Mellitus The nexus requirement may be satisfied if the Veteran was exposed to an herbicide agent in service and has a disease that is presumed to be associated with herbicide exposure. 38 U.S.C. § 1116(a)(2) (2012); 38 C.F.R. § 3.309(e) (2017). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). If a veteran was exposed to an herbicide agent during active service, diabetes mellitus shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Veteran asserts that he was exposed to herbicide agents in service because he set foot in Vietnam. The Board notes there is no indication in the Veteran's records that the Veteran served on the ground in Vietnam. However, the Board must consider the multiple lay statements submitted by the Veteran indicating his service on the ground. The Veteran stated that he was flown into Vietnam on a covert mission while in service. The Board notes the Veteran's service records indicate he was cleared to handle confidential matters. Moreover, the evidence contains a letter the Veteran wrote his wife from the 1960's describing his long flight, his duties in Vietnam, and that he had not yet seen his wife's brother, who was stationed in Vietnam at the time. The Veteran's wife also submitted a statement indicating that during that time period she received a call from the Veteran where he stated he would be in Vietnam for a few days. The Veteran submitted another statement from a comrade serving in Vietnam at the time who remembered talking to the Veteran in a bar, while stationed in Vietnam, as they were both from the Kansas. The Board finds the lay evidence in favor of the Veteran setting foot in Vietnam credible and competent, and they establish that the Veteran served on the ground in Vietnam. Thus, the Board concludes presumptive service connection for diabetes mellitus as due to herbicide agent exposure is warranted. B. Erectile Dysfunction Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds the Veteran's erectile dysfunction is secondarily service connected to his now service-connected diabetes mellitus. In a November 2017 medical opinion the Veteran's doctor noted that the Veteran's erectile dysfunction was related to his diabetes. Therefore, based on the medical evidence of record the Board concludes secondary service connection is warranted. C. Tinnitus Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Tinnitus is an organic disease of the nervous system and is thus considered a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). As such, if it cannot be shown the Veteran developed a disability in service, a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes the February 2015 VA examiner determined he could not opine as to the etiology of the Veteran's tinnitus without resorting to mere speculation. The VA examiner noted the Veteran did not have any audiological examinations in his service records, only the whispered voice test. While the VA examiner did acknowledge the Veteran was exposed to a moderate level of noise in the Veteran's duties as a radioman, without an audiological examination the examiner could not provide an opinion. The February 2015 examination report is inadequate and therefore not probative. Because tinnitus is a disorder capable of lay observations and the Veteran's competent assertions regarding persistence of symptoms are credible, continuity of symptomatology is shown. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The preponderance of the evidence is in favor of the claim, and service connection is warranted for tinnitus. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER New and material evidence having been submitted, the claim for service connection diabetes mellitus is reopened. Service connection for diabetes mellitus is granted, subject to the laws and regulations governing the payment of monetary benefits. New and material evidence having been submitted, the claim for service connection for hypertension is reopened, and to this extent only, the appeal is granted. Service connection for erectile dysfunction is granted. Service connection for tinnitus is granted. REMAND The Board concludes this case must be remanded to afford the Veteran an opportunity to have a VA examination for his hypertension. A VA examination is required when there is an indication that the disability may be associated with the Veteran's service. McClendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above there is medical evidence documenting the Veteran's heart issues back to 1966, but the evidence remains unclear whether the Veteran had hypertension at that time such that presumptive service connection is warranted. Additionally, as the Veteran is now service-connected for diabetes mellitus, a VA examination is necessary to determine if the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus. However, the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) ("In Update 2006, NAS concluded that there was 'limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.'"); Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332, 81,333 (December 27, 2010) (NAS, in 2008, categorized certain health outcomes, including hypertension, to have "'limited or suggestive evidence of an association.' This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence."). This was reiterated again in Update 2010. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012). This information meets the low threshold established in McLendon v. Nicholson, 20 Vet. App. 79 (2006), for is considered an indication that a condition may be associated with service. Therefore an examination is needed on this basis as well. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Then, the examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during active service; is related to an incident of service, or, began within one year after discharge from active service. b. Whether it is at least as likely as not that the Veteran's hypertension was caused by his diabetes mellitus. c. Whether it is at least as likely as not that the Veteran's hypertension was aggravated by his diabetes mellitus. d. Whether it is at least as likely as not that the Veteran's hypertension is directly related to his herbicide agent exposure. It is insufficient for the examiner to provide a negative opinion merely because hypertension is not a condition on the presumption list for herbicide agents. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 (2012). ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs