Citation Nr: 18151805 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-04 192 DATE: November 20, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a heart condition, to include as due to herbicide exposure, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is reopened. An initial compensable disability rating for bilateral hearing loss is denied. An initial disability rating greater than 10 percent for tinnitus is denied. An effective date earlier than January 30, 2012 for the grant of service connection for bilateral hearing loss is denied. An effective date earlier than January 30, 2012 for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. A June 2004 rating decision denied service connection for a heart condition and for diabetes mellitus. The Veteran did not appeal that decision and it became final. 2. Evidence submitted since the June 2004 rating decision is new and material as it relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a heart condition and for diabetes mellitus. 3. The Veteran’s hearing loss is manifested by level I hearing loss in each ear. 4. The Veteran is in receipt of a disability rating of 10 percent for tinnitus which is the maximum schedular rating for that disability. 5. The Veteran filed a claim for service connection for bilateral hearing loss which was received by the Regional Office (RO) on January 30, 2012. An August 2013 rating decision granted service connection for bilateral hearing loss and assigned an effective date of January 30, 2012. No formal or informal claim for service connection for bilateral hearing loss was received prior to January 30, 2012. 6. The Veteran filed a claim for service connection for tinnitus which was received by the RO on January 30, 2012. An August 2013 rating decision granted service connection for tinnitus and assigned an effective date of January 30, 2012. No formal or informal claim for bilateral hearing loss was received prior to January 30, 2012. CONCLUSIONS OF LAW 1. The June 2004 rating decision which denied service connection for a heart condition and for diabetes mellitus is final. 38 U.S.C. §§ 7104, 7015(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claims for service connection for a heart condition and for diabetes mellitus. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 3. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 4. The criteria for an initial disability rating greater than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, DC 6260. 5. An effective date earlier than January 30, 2012 for the grant of service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. An effective date earlier than January 30, 2012 for the grant of service connection for tinnitus is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from July 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. While the Board currently has jurisdiction of issues concerning entitlement to service connection for a heart condition, hypertension, diabetes mellitus, and multiple lipomas (each claimed as due to herbicide exposure), such issues will not be addressed at this time. Significantly, in an August 16, 2018 order, the Federal Circuit questioned whether the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam. See Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). Oral argument in the Procopio case is scheduled for December 7, 2018. On October 23, 2018, the Board issued a stay concerning the adjudication of appeals for compensation based on alleged exposure to herbicide agents in the offshore waterways of the Republic of Vietnam pending resolution of the Procopio case. New and Material Evidence Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.   1. Heart condition The Veteran’s claim for service connection for a heart condition was originally denied in a June 2004 rating decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. The claim was denied on the basis of a finding that the Veteran did not have a current heart condition. See, June 2004 rating decision. At the time of the June 2004 rating decision, the competent evidence of record included the Veteran’s service treatment records, personnel records, and post-service treatment records. See, June 2004 rating decision. The Board finds that new and material evidence has been submitted since the June 2004 rating decision. Specifically, the Board notes that the newly submitted evidence includes significant additional post-service treatment records which reflect that the Veteran does have a heart condition and has received treatment for chest pain on multiple occasions. The Veteran has also asserted that his heart condition is a result of alleged herbicide exposure. The Board finds that the above-mentioned evidence is new in that it was not of record at the time of the previous denial in June 2004. It is material in that it speaks directly to the Veteran’s claim for entitlement to service connection for a heart condition. Furthermore, when considered with the previous evidence of record, it could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claim for service connection for a heart condition is reopened. 2. Diabetes mellitus The Veteran’s claim for service connection was originally denied in a June 2004 rating decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. The claim was denied on the basis of a finding that the Veteran did not set foot in Vietnam and, thus, was not entitled to presumptive service connection based on herbicide exposure See, June 2004 rating decision. At the time of the June 2004 rating decision, the competent evidence of record included the Veteran’s service treatment records, personnel records, and post-service treatment records. See, June 2004 rating decision. The Board finds that new and material evidence has been submitted since the June 2004 rating decision. Specifically, the Board notes that the newly submitted evidence includes significant additional post-service treatment records and further information, to include an August 2013 Memorandum from a Joint Services Records Research Center (JSRRC) Coordinator, regarding the Veteran’s naval service and alleged herbicide exposure. The Board finds that the above-mentioned evidence is new in that it was not of record at the time of the previous denial in June 2004. It is material in that it speaks directly to the Veteran’s claim for entitlement to service connection for diabetes mellitus. Furthermore, when considered with the previous evidence of record, it could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claim for service connection for diabetes mellitus is reopened. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Bilateral hearing loss The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 when an exceptional pattern of hearing loss is shown. The Veteran was afforded a VA examination in June 2012. Pure tone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 35 50 LEFT 40 40 55 60 75 The average decibel loss in the right ear was 29 and the average decibel loss in the left ear was 54. Speech recognition ability, using the Maryland CNC test, was 94 percent in the right ear and 98 percent in the left ear. See, June 2012 VA audiological examination. These audiological findings correspond to level I hearing in each ear. 38 C.F.R. § 4.85, Table IV. Under Table VII, a designation of level I in both the right and left ears yields a noncompensable disability rating, which the Veteran is currently in receipt of. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consideration has been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the Veteran’s audiological findings from his September 2014 VA examination. For this examination, pure tone threshold levels were neither 55 decibels or higher at 1000, 2000, 3000, and 4000 Hertz, nor were they 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Board has not overlooked the instances in which the Veteran has endorsed hearing loss in his post-service private treatment records. However, there are objective audiological findings in those records and therefore, the Board will rely on the findings from the June 2012 VA audiological examination. Accordingly, based on the medical evidence of record as outlined above, the Board finds that the preponderance of the evidence is against a finding of entitlement to an initial compensable rating for bilateral hearing loss. 2. Tinnitus The Veteran has asserted that the he is entitled to a rating in excess of 10 percent for his tinnitus, which is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. This is the maximum schedular rating assignable for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Although the Veteran argues that he is entitled to a rating in excess of 10 percent for tinnitus, Diagnostic Code 6260 precludes an evaluation in excess of a single 10 percent schedular rating for tinnitus. Under these circumstances, the disposition of this claim is based on the law, and not the facts of this case. Therefore, the claim for an increased rating must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim may arise. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Veteran has asserted that he is entitled to an effective date earlier than January 30, 2012, for the grant of service connection for bilateral hearing loss and tinnitus. Unfortunately, he has not explained why he believes that he is entitled to an earlier effective date. The facts in this case are not in dispute. The Veteran submitted an initial claim for service connection for bilateral hearing loss and tinnitus on January 30, 2012. By rating decision dated in August 2013, the RO granted service connection for bilateral hearing loss, assigning a noncompensable disability rating, and tinnitus, assigning a 10 percent disability rating. The Veteran perfected an appeal of this decision. A review of the Veteran’s file finds that there is no evidence of a formal or informal claim for entitlement to service connection for bilateral hearing loss or tinnitus received by the RO prior to January 30, 2012. Significantly, while the Veteran submitted a claim for service connection for various disabilities in December 2003, this claim does not mention either hearing loss or tinnitus. While the Board is sympathetic to the Veteran’s claim, the Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. Based on this record, no effective date earlier than January 30, 2012, is warranted for service connection for the Veteran’s bilateral hearing loss and tinnitus. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. Sabonis v. Brown, 6 Vet. App. 426 (1994). APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel