Citation Nr: 18150776 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-39 988 DATE: November 15, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened; to this extent, the claim is granted. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened; to this extent, the claim is granted. Entitlement to an initial evaluation in excess of 30 percent for service-connected ischemic heart disease, s/p bypass surgery is denied. REMANDED Entitlement to service connection for hypertension, to include as due to service-connected ischemic heart disease and/or exposure to herbicides is remanded. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. By a February 2007 rating decision, the Regional Office (RO) denied the Veteran’s claims for service connection for bilateral hearing loss and service connection for hypertension; he was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s February 2007 decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO’s February 2007 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hearing loss and service connection for hypertension, and raises a reasonable possibility of substantiating the claims. 4. The Veteran’s ischemic heart disease, s/p bypass surgery did not involve acute congestive heart failure, or a LVEF of 30 to 50 percent. His ischemic heart disease showed a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, and dizziness. CONCLUSIONS OF LAW 1. The Regional Office’s February 2007 rating decision to deny service connection for bilateral hearing loss and service connection for hypertension is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral hearing loss and service connection for hypertension. 38 U.S.C. §§ 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. The criteria for entitlement to an increased evaluation in excess of 30 percent for service-connected ischemic heart disease, s/p bypass surgery have not been met. 38 C.F.R. §§ 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code (DC) 7017 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served during the Vietnam Era on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision granting service connection for ischemic heart disease, s/p bypass surgery and assigning a 100 percent rating effective June 20, 2014, and a 30 percent rating from September 1, 2014, and denying service connection for hypertension and service connection for bladder cancer; and a February 2016 rating decision denying service connection for bilateral hearing loss and tinnitus. The Veteran did not request a Board hearing. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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) (2017). VA regulations provide that a Veteran who, during active military, naval, or air 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 U.S.C. § 1116 (f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307 (d), 3.309(e). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The issue of entitlement to service connection for bilateral hearing loss was originally denied in a December 2006 rating decision and again in a February 2007 rating decision because the evidence did not show the Veteran had a diagnosis of hearing loss. The Veteran did not initiate an appeal of this denial, and it became final. In October 2015, the Veteran stated he served in Vietnam around firearm and grenade noises with no ear protection, and recalled an instance when a grenade landed within 50 feet of him. He was also afforded a VA examination in December 2015 in which the examiner noted that the Veteran’s MOS was a storage specialist which had a low probability for noise exposure. The Veteran’s statement is presumed credible for purposes of determining whether new and material evidence has been received. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the claim for entitlement to service connection for bilateral hearing loss is reopened. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension The issue of entitlement to service connection for hypertension was originally denied in a December 2006 rating decision and again in a February 2007 rating decision because the evidence did not show evidence of hypertension in service and it did not manifest to a compensable degree within one year from discharge from service. The Veteran did not initiate an appeal of this denial, and it became final. The Veteran submitted private treatment records from August 2012 to June 2014 and VA treatment records from July 2006 to July 2013. The Veteran stated his blood pressure went high in April 2015 and claimed his hypertension was due to his service-connected ischemic heart disease. The Veteran’s VA and private treatment records are not new and material because they are cumulative and redundant of the evidence of record at the time of the February 2007 rating decision. The evidence of record at the time of the February 2007 rating decision showed the Veteran had a diagnosis for hypertension and had received ongoing treatment for it since 1985. The VA and private treatment records continued to show the Veteran continued to be treated for hypertension and therefore that evidence is cumulative and redundant. The Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). However, while a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Veteran has submitted no evidence supporting his new theory of entitlement; however, the Board notes that hypertension was recently elevated to the category of “limited or suggestive evidence” of an association with exposure to herbicides by the National Academies of Sciences. Therefore, the claim for entitlement to service connection for hypertension is reopened. Increased Rating 3. Entitlement to an increased evaluation in excess of 30 percent for service-connected ischemic heart disease, s/p bypass surgery Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Veteran seeks a higher initial rating for his IHD, which was originally rated as 100 percent disabling under Diagnostic Code 7017, effective June 20, 2014, and as 30 percent disabling from September 1, 2014. Under DC 7017, a 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7017. A note prior to the Diagnostic Code explains that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). The Veteran contends that he rates an evaluation greater than 30 percent for his service-connected ischemic heart disease (IHD), status post bypass surgery, effective September 1, 2014. The Veteran was afforded a VA examination in August 2014. The examiner stated the Veteran had no congestive heart failure. Based upon an interview with the Veteran, the examiner found the Veteran had a workload of greater than 5 METs but no greater than 7 METs due to dyspnea and fatigue. This level of METs was consistent with activities such as walking one flight of stairs, golfing without a cart, using a push mower to mow the lawn, and heavy yard work. The Veteran related that in April 2015 he was admitted to the hospital due to dizziness and exhaustion. See April 2015 Statement in Support of Claim. July 2015 private treatment records showed the Veteran’s left ventricular dysfunction with an ejection fraction estimated to be from 55 percent to 60 percent with no left ventricular outflow tract obstruction. The Veteran’s friend stated the Veteran has problems walking 50-75 yards on level ground and gets tired and dizzy. See July 2015 Statement in Support of Claim. The Board finds that a preponderance of the evidence shows the Veteran’s IHD does not warrant an increased rating. The Veteran had symptoms of dyspnea, dizziness and fatigue. He has problems walking 50 to 75 yards on level ground. However, the statutory guidelines for MET testing under DC 7017 allow for a medical examiner to make an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) when a stress test is not able to be conducted. In this case, the Veteran was unable to complete a stress test and the examiner provided an estimation of the Veteran’s METs based upon an interview with the Veteran. The examiner stated the Veteran’s METs were more than 5 METs, but not greater than 7 METs. As such, the most probative evidence establishes that the Veteran’s coronary artery disease does not exceed the current rating criteria. Accordingly, an increased rating is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claim, and it must be denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to service-connected ischemic heart disease and/or exposure to herbicides is remanded. The Veteran served in Vietnam from October 1969 to October 1970 and is presumed to have been exposed to herbicides. The Board cannot make a fully-informed decision on the issue of hypertension because no VA examiner has opined whether the Veteran’s hypertension is due to his ischemic heart disease or his exposure to herbicides in service. 2. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides is remanded. The Veteran contends his bladder cancer is due to his exposure to Agent Orange. The Veteran served in Vietnam from October 1969 to October 1970 and is presumed to have been exposed to herbicides. The Veteran has a current diagnosis of bladder cancer and his medical records show that he has undergone treatment for bladder cancer. Bladder cancer is not currently included on the list of diseases associated with exposure to certain herbicides under 38 C.F.R. 3.309 (e) that trigger presumptive service connection. However, the National Academies of Sciences (NAS) recently reclassified bladder cancer as a disease that has “limited or suggestive evidence of an association” with exposure to herbicides. NAS, Veterans and Agent Orange: Update 2014 (March 10, 2016). The Board cannot make a fully-informed decision on the issue of hypertension because no VA examiner has opined whether the Veteran’s bladder cancer is due to his exposure to herbicides in service. 3. Entitlement to service connection for bilateral hearing loss The Veteran contends his bilateral hearing loss and tinnitus are due to his service in Vietnam and being subjected to firearm and grenade noises. The Veteran was afforded a VA examination in December 2015. The VA examiner opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to the Veteran’s active service. The examiner reasoned the Veteran’s military occupational specialty indicated a low probability for noise and the Veteran’s enlistment and separation examinations both showed normal puretone threshold levels. The Board finds that an addendum opinion should be obtained that considers the Veteran’s lay statements regarding his exposure to firearms and grenade noises. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether: a) In light of the National Academy of Science’s elevation of hypertension to the "Limited or Suggestive Evidence" category, it is at least as likely that the Veteran’s hypertension is etiologically related to his presumed exposure to herbicides given his medical history, family history, absence of other risk factors, etc. b) it is at least as likely as not (1) proximately due to the Veteran’s service-connected ischemic heart disease, or (2) aggravated beyond its natural progression by service-connected ischemic heart disease. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bladder cancer. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. In light of the National Academy of Science’s elevation of bladder cancer to the "Limited or Suggestive Evidence" category, the examiner must opine whether it is at least as likely that the Veteran’s bladder cancer is etiologically related to his presumed exposure to herbicides given his medical history, family history, absence of other risk factors, etc. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Obtain an addendum opinion to the December 2015 VA examination report. In light of the Veteran’s contention that during his service in Vietnam he was exposed to firearm and grenade noises, including a grenade landing within 50 feet of him, the examiner is asked to again opine as to whether it is at least as likely as not that his hearing loss and tinnitus are related to an in-service injury, event, or disease in active service. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel