Citation Nr: 18161019 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-14 992 DATE: December 28, 2018 ORDER New and material evidence having not been received, the application to reopen the previously denied claim of entitlement to service connection for heat intolerance is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDING OF FACT 1. In a November 1987 decision, the Board denied the Veteran’s claim of entitlement to service connection for heat intolerance. 2. Evidence received since a final November 1987 Board decision is cumulative of the evidence that was of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim for service connection for heat intolerance. CONCLUSIONS OF LAW 1. The November 1987 Board decision denying service connection for heat intolerance is final. 38 U.S.C. § 4004(b) (1982); 38 C.F.R. § 19.104 (1986). 2. New and material evidence has not been received to warrant reopening of the claim of service connection for heat intolerance. 38 U.S.C. § 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from June to July 1977, and on active duty from May 1980 to August 1984, from March 1991 to June 1991, from February 1997 to November 1997, from June 2003 to September 2003, from October 2003 to April 2004, from February 2005 to November 2005, and from July 2009 to June 2011, including service in the Southwest Asia theater of operations from March 4 to 7, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and October 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Winston-Salem, North Carolina and St. Petersburg, Florida, which, inter alia, reopened the previously denied claim of service connection for heat intolerance and denied it on the merits; denied service connection for hypertension and erectile dysfunction; and granted service connection for left ear hearing loss and assigned an initial noncompensable rating effective June 19, 2011. In connection with his appeal, the Veteran requested and was scheduled for a Board hearing in Washington, D.C., to be held in March 2017. He was notified of the time and date of the hearing in a January 2017 letter. In a February 2017 correspondence, however, the Veteran withdrew the request for a Board hearing and asked that the Board render a decision based on the evidence of record. Accordingly, the Board deems the hearing request withdrawn. 38 C.F.R. § 20.704(e). The Board also notes that the Veteran’s December 2012 notice of disagreement (NOD) and the March 2015 Statement of the Case (SOC) listed two additional issues -- entitlement to an initial rating in excess of 10 percent for residuals of a right ankle injury and entitlement to an initial compensable rating for a residual scar, status post right inguinal hernia repair. However, on his VA Form 9 received in April 2015, the Veteran limited his appeal to the issues set forth above on the cover page of this decision. Therefore, the issues of entitlement to an initial rating in excess of 10 percent for residuals of a right ankle injury and entitlement to an initial compensable rating for a residual scar are not before the Board. The Board also observes that following the issuance of the March 2015 SOC, additional VA examination reports were associated with the Veteran’s electronic claims file. However, these reports do not pertain to the Veteran’s claim of service connection for heat intolerance. Therefore, this evidence is not pertinent to the issue adjudicated below and remand for initial agency of original jurisdiction (AOJ) review is not required. See 38 C.F.R. §§ 19.31, 19.37. A May 2017 VA examination does pertain to the Veteran’s claim for hearing loss and will be addressed in the remand portion of this decision. New and Material Evidence 1. Whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for heat intolerance. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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 (2017). 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, the 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; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). In July 1985, the Veteran submitted an original application for VA compensation benefits, seeking service connection for heat exhaustion. He indicated that during a period of active duty for training in 1977, he suffered two episodes of heat injury. The first incident was an episode of heat exhaustion and the second was an episode of heat stroke. The latter episode required a period of hospitalization and light duty. He indicated that he subsequently had three heat-related incidents while on active duty and that “my tolerance to high temperatures has been seriously, if not completely, destroyed.” See also August 1986 hearing transcript. In connection with his claim, the Veteran was afforded a VA medical examination in September 1985 at which he reported that since his heat injuries, he had experienced severe reactions to high temperatures characterized by profuse sweating and an increased in respiration and pulse rate. He indicated that if he was unable to cool himself, he becomes groggy and disoriented. On examination, the Veteran exhibited a normal reaction to vigorous exercise. Neurological examination was normal. The examiner indicated that the Veteran had a history of susceptibility to heat prostration and/or sunstroke but that he had a normal physical examination with no physical signs of this. At a December 1986 fee basis neurological examination, the Veteran reported that he had a “complete intolerance to heat manifesting itself in rapid pulse, tightness in the chest, profuse sweating for a short time, nausea, and severe headaches in temperatures of 90 degrees or above and growing more severe with prolonged exposure.” The examiner took a detailed history from the Veteran and conducted a physical examination. Except for the reported heat intolerance, the examiner indicated that he found nothing positive, including any impairment of neurological functions of any type. An EEG was performed to rule out any central nervous system damage as a residual of heat exhaustion (stroke). The results of the study were thought to be within normal limits. The examiner’s impression was that the only established diagnosis was that the Veteran had been exposed to heat stroke situation by history. The examiner indicated that the Veteran had no impairment of physical functioning at this time and that if he has impairment, it is only on a physiological basis of heat intolerance. He is restricted in terms of his exposure to high temperatures, he probably does respond unusually physiologically to high temperatures because of his history, and he is certainly impaired in terms of the potential for place of living, the possibility of working in high temperatures, and requires that amount of protection. The examiner indicated that because EEG is normal, and the Veteran had had CT scans of the brain in the past, there was no further evaluation that would be of any help to the Veteran. In a November 1987 decision, the Board denied service connection for heat intolerance, finding that the record demonstrated no current disability for which service connection is available. The Board considered the Veteran’s service treatment records noting two episodes of heat exhaustion during active duty for training in 1977, an episode during active duty in 1980 in which the Veteran had fallen out during a 2-mile hike, and complaints of a problem with heat in 1982. In addition to reviewing service treatment records (STRs), the Board also reviewed the September 1985 VA examination that noted a diagnosis of a history of severe susceptibility to heat prostration or exhaustion; August 1986 hearing testimony from the agency of original jurisdiction (AOJ); and the December 1986 fee basis neurological examination and EEG that reported neurological findings to be normal. Finally, the Board also reviewed a March 1987 state department of highway safety and motor vehicles letter notifying the Veteran that he would not be considered for further employment due to the Veteran’s statements in a polygraph examination that he suffered from neurological damage from 2 prior heat strokes. After considering the evidence of record, the Board concluded that the record did not contain probative evidence that a residual disability was demonstrated from the Veteran’s episodes of heat exhaustion and that complaints of heat intolerance did not comprise an organic disorder for which service connection was available. The Board’s decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 4004(b) (1982); 38 C.F.R. § 19.104 (1986). In this appeal, the Veteran seeks to reopen his claim of service connection for heat intolerance. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board notes that in the October 2013 rating decision currently on appeal, the RO reopened the claim and denied it on the merits. Despite the RO’s finding, the Board is obligated by statute (38 U.S.C. §§ 5108, 7104(b)) to address whether new and material evidence has been submitted prior to addressing the merits of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, despite the RO’s finding, the Board must make a determination of whether new and material evidence has been presented to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to determine whether new and material evidence has been received and the claim may be reopened, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final November 1987 Board decision. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the Board’s November 1987 decision includes service treatment records corresponding to the Veteran’s subsequent periods of active duty and Reserve service. Because these records did not exist at the time of the prior decision, the Board finds that reconsideration pursuant to 38 C.F.R. § 3.156(c) is not warranted. The Board further finds that these additional records are not new and material. Although these records show that the Veteran continued to report a history of heat exhaustion in 1977, they continue to contain no indication of a current disability associated with that history. Thus, this evidence is cumulative of evidence previously considered and does not raise a reasonable possibility of substantiating the claim. Similarly, the additional evidence associated with the record since the Board’s November 1987 decision includes VA and private clinical records, as well as a September 2013 VA examination report. The clinical records contain notations showing that the Veteran continued to report a history of heat exhaustion/stroke in 1977, but are similarly negative for any indication of a current disability associated with those episodes. The September 2013 VA medical examination report shows that during the examination, the Veteran reported a history of two heat exhaustion injuries in 1977 and indicated that he had a “degraded capability to stay in hot temperatures.” After reviewing the record and examining the Veteran, the examiner noted that there was no evidence of heat stroke, no history neurologic-related hospitalizations or surgery, no neurologic trauma, and no neurologic neoplasm. Fundoscopic findings, mental status examination, the cranial nerves, and a cerebellar examination were normal. The examiner indicated that there was no evidence of chorea and that a carotid bruit was not present. No diagnosis of a current disability was rendered. The Board finds that this additional clinical evidence is not new and material. The Veteran’s history of heat injuries in 1977 was of record and considered by the Board at the time of the prior decision. Thus, the additional records in which he reiterated this history are essentially cumulative of evidence already of record. The September 2013 VA examination report, in addition to containing the Veteran’s reported history of heat exhaustion/stroke, contains his reports of a continuing “degraded ability to stay in hot temperatures.” The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran’s testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran’s testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, the Veteran’s reports of an inability to tolerate heat since the 1977 injuries were previously considered by the Board. Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra. Moreover, the September 2013 examination report indicated that despite the Veteran’s report of a continued inability to tolerate heat, there was no current disability associated with the in-service heat injuries. The record otherwise contains no clinical evidence of a current disability which was not previously considered in prior decision. Thus, the additional clinical evidence, including the September 2013 examination report, does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). The additional evidence received since the final November 1987 Board decision includes a statement from the Veteran, dated March 2013, and a statement from the spouse of a fellow servicemember, J.B., also dated March 2013. In his statement, the Veteran described episodes in September 1980 and July 1983 in which he suffered from heat exhaustion. Additionally, the Veteran reported being identified as a heat casualty after the above referenced heat exhaustion episodes, which required him to wear a small red plastic square on the outside of his uniform to alert supervisors and medical personnel. He contends that his identification as a heat casualty led to his transfer from a combat arms branch to administrative duties. The statement from the spouse of a fellow service member, J.B., also reported that the Veteran suffered from an episode of heat exhaustion in 1980 and another heat related episode that was not identified by date. Although the Veteran reported an episode of heat exhaustion in 1983 and disclosed that he was considered a heat casualty as evidenced by the red plastic square he was required to wear on his uniform, evidence that was not before the Board in November 1987, his statement and J.B.’s statements are essentially cumulative of evidence previously considered, i.e. evidence of in-service heat injuries with subjective reports of an inability to tolerate heat. These records contain no indication that the Veteran has a current residual disability associated with the in-service injuries. The critical element in the November 1987 denial of service connection was the lack of evidence of a current disability, evidence which the record continues to lack. The Veteran’s lay contention that he suffers from a heat intolerance disability and that he suffered from multiple episodes of heat exhaustion, were of record at the time of the denial. Under these circumstances, the Board finds that the additional evidence is cumulative of evidence previously considered in the November 1987 Board decision. Moreover, the additional evidence received does not raise a reasonable possibility of substantiating the claim nor does it trigger VA’s duty to assist. Because the evidence received since November 1987 is cumulative of the evidence of record at the time of the prior final denial of the claim and because it could not reasonably substantiate his claim, it is not new and material. 38 C.F.R. § 3.156. Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for heat intolerance is not reopened. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran claims that service connection for hypertension is warranted as he was diagnosed as having hypertension and erectile dysfunction during service. He also appears to contend that his erectile dysfunction is secondary to his hypertension. The RO has denied the claims on the basis that neither condition was incurred in or aggravated during a period of active duty, is otherwise related to an injury or disease contracted in the line of duty, or was manifest to a compensable degree within an applicable presumptive period. In that regard, the RO has noted that a January 2011 service treatment records indicates that the Veteran was diagnosed as having hypertension and prescribed Lisinopril in June 2000, during a period in which he was not on active duty. The Veteran has appealed the RO’s determination. In his December 2012 NOD, the Veteran argued that VA claims that because these conditions were not diagnosed until approximately 2000 that they ‘existed prior to service, and have not permanently worsened as a result of service.’ Please direct your attention to [evidence] providing conclusively that I had not [sics] breaks in service within the US Army/US Army Reserve between the time period May 16, 1980, through June 15, 2008. The year 2000 easily falls within that timeframe and prior to 2000, no medical record of mine reflects high blood pressure or erectile dysfunction…I find it incredulous that the VA would attempt to deny service connection for high blood pressure resulting in hypertension and erectile dysfunction when my service includes those two factors…If the VA wishes to claim ‘not service connected because it existed prior to service and not permanently worsened as a result of service,’ it will have to prove that I had high blood pressure prior to 5/16/1980.” The Veteran, however, is incorrect. He is advised that although he was a member of the Army Reserve from 1980 to 2008, the record reflects that he was not on “active duty” during that entire period. The law provides that service connection is granted for disability resulting from personal injury suffered or disease contracted “in line of duty in the active military, naval, or air service.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The term “active military, naval, or air service” includes: (1) active duty, (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Alternatively, where a veteran served continuously for 90 days or more during active service, and certain chronic diseases (including cardiovascular-renal disease such as hypertension) become manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In other words, in order to award service connection for hypertension, the law requires that it began during a period of active duty or that the Veteran developed disabling hypertension while he was on a period of active duty for training. 38 C.F.R. § 3.6 (a), (c) (defining active service as active duty and any period of ACDUTRA in which a claimant becomes disabled or died from a disease or injury incurred or aggravated in the line of duty). Alternatively, absent affirmative evidence to the contrary, service connection may be awarded if hypertension became manifest to a compensable degree within one year of discharge from any period of active service which was 90 days or more. Hypertension is considered disabling if diastolic blood pressure readings are predominately 100 or more, systolic readings are predominately 160 or more, or where an individual exhibits a history of diastolic pressure predominately 100 or more and requires continuous medication is required for control of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101. In this case, the Board finds that the record is unclear when the Veteran developed disabling hypertension. Although the Veteran completed a report of medical history in January 2011 on which he appeared to report having hypertension for which he was prescribed Lisinopril in June 2000, the record also contains an indication that it was not until 2004 that the Veteran was diagnosed as having hypertension and prescribed Lisinopril. See September 2004 private clinical record. If the former is true, it does not appear that service connection would be warranted, as the Veteran was apparently not on active duty or ACDUTRA in June 2000 when he developed disabling hypertension, nor does the date of diagnosis of disabling hypertension fall within an applicable presumptive period. If the latter is true, however, it appears that the Veteran developed disabling hypertension within one year after his separation from his period of active duty from October 2003 to April 2004, which would warrant an award of presumptive service connection, absent evidence to the contrary. In view of the foregoing, the Board finds that additional development is necessary with respect to the claim of service connection for hypertension. Moreover, given the Veteran’s contentions regarding the etiology of his erectile dysfunction, the claims are inextricably intertwined. 3. Entitlement to an initial compensable rating for left ear hearing loss is remanded. The Veteran seeks entitlement to an initial compensable rating for left ear hearing loss. The Board notes that a May 2017 VA examination for hearing loss was associated with the claims file after the Veteran’s case was certified to the Board. Because this evidence is pertinent to the Veteran’s claim, remand for initial agency of original jurisdiction (AOJ) review is required. See 38 C.F.R. § 20.1304(c) (2017) (requiring remand for initial AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board). Accordingly, the Board will remand for a supplemental statement of the case (SSOC). Accordingly, the matter is REMANDED for the following action: 1. Contact the Veteran and offer him the opportunity to submit or specifically identify clinical evidence clarifying the date he was first diagnosed as having hypertension and/or prescribed anti-hypertensive medication. 2. Afford the Veteran a VA examination for the purpose of determining the etiology and likely date of onset of his hypertension. Access to the Veteran’s electronic claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should provide an opinion as to the likely date of onset of the Veteran’s hypertension, as it is relevant as to whether such was during a period of active duty, ACDUTRA, or within one year following separation from a period of active duty. In providing the requested opinion, the examiner should review the relevant evidence of record, to include the Veteran’s reported medical history, the January 18, 2011 service treatment record apparently noting that the Veteran had been taking Lisinopril since June 2000; and the September 14, 2004, private medical record noting a diagnosis of hypertension for which Lisinopril was prescribed. 3. Afford the Veteran a VA examination for the purpose of determining the etiology and likely date of onset of his erectile dysfunction. Access to the Veteran’s electronic claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should provide an opinion as to the likely date of onset of the Veteran’s erectile dysfunction. In addition, the examiner should provide an opinion as to the etiology of the Veteran’s erectile dysfunction, to include whether it is at least as likely as not casually related to or aggravated by his hypertension. (Continued on the next page)   4. After reviewing the record, readjudicate the claims on appeal. If the benefits sought are denied, issue an SSOC before the case is returned to the Board. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel