Citation Nr: 1807174	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-17 632	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type 2.

2. Entitlement to service connection for a right knee disability.

3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 

4. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion




ATTORNEY FOR THE BOARD

N.S. Pettine, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to October 1967, to include service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Veteran originally requested a Board hearing in his April 2014 substantive appeal.  But, in March 2015, he withdrew his request.  

The issues of (1) service connection for hypertension; (2) service connection for a right knee disability; and (3) service connection for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. An unappealed January 1969 rating decision denied a claim of entitlement to service connection for defective hearing.  

2. Evidence received since the January 1969 rating decision relates to prior unestablished facts.




CONCLUSION OF LAW

The January 1969 rating decision is final, and new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As indicated above, the Board finds that new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss.  In making this determination, the Board first notes that the Veteran's claim was initially denied in January 1969 because a VA examination conducted in relation to the claim showed normal hearing.  The Veteran was notified of this rating decision in February 1969.  The Veteran did not appeal or submit any evidence within one year of being notified of the January 1969 rating decision and, therefore, it became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Evidence received since the January 1969 rating decision includes an August 2010 VA examination report and a December 2017 informal hearing presentation (IHP) submitted by the Veteran's representative.  This evidence is "new," as it was not previously submitted to agency decision makers.  It is also "material," as it addresses the reason for the prior denial.  

Specifically, the August 2010 VA examination report notes that the Veteran currently has mild sensorineural hearing loss in both ears.  Accordingly, as this new evidence relates to an unestablished fact that is necessary to substantiate the Veteran's claim, the Board finds that new and material evidence has been received.  As such, the claim will be reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).


ORDER

New and material evidence having been received, entitlement to service connection for bilateral hearing loss is reopened.


REMAND

Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claims for (1) service connection for hypertension; (2) service connection for a right knee disability; and (3) service connection for bilateral hearing loss.

Hypertension

In regard to the Veteran's hypertension claim, during a July 2011 VA examination for a claim of entitlement to service connection for diabetes mellitus, the examiner indicated that the Veteran had hypertension and that it was a possible diabetes complication.  However, the examiner clarified that he could not attribute hypertension to diabetes as the Veteran's hypertension diagnosis preceded his diabetes diagnosis.

In July 2011 the Veteran was also provided a VA hypertension examination wherein the examiner confirmed that the Veteran did indeed have a current diagnosis of hypertension.  However, it was not requested that the examiner render an opinion as to the etiology of the Veteran's hypertension.

Recently, in Frost v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis.  2017 U.S. App. Vet. Claims LEXIS 1747, at *1-2 (Nov. 30, 2017).  The Court explained that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred."  Id. at *2.

The Court's holding in Frost renders the July 2011 VA diabetes examiner's opinion regarding a possible relationship between diabetes and hypertension inadequate for adjudicative purposes.  Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Accordingly, the Board will remand the matter so that a new VA medical opinion regarding hypertension may be obtained.

Right Knee

Moving to the Veteran's claim for service connection for a right knee disability, the Board notes that the Veteran has yet to be afforded a VA examination or medical opinion.  A pair of 2010 decisions-Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010)-explain the proper inquiry for determining whether a veteran is entitled to a medical examination under 38 U.S.C. § 5103A(d)(2).  The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence, (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  Part (A) requires competent medical evidence, but part (B) may be satisfied by lay evidence, even if that evidence is outweighed by more probative evidence against a nexus.

The Board finds that the evidence satisfies the Waters/Colantonio criteria for the right knee disability claim.  Firstly, the evidence indicates that the Veteran currently suffers from a knee disability, as osteoarthritis of the knee was listed as an active medical problem in an August 2010 VA treatment record.

Next, the Board notes that evidence indicates that a right knee disability may be related to service.  Specifically, as indicated by his representative in the December 2017 IHP, the Veteran contends that he injured his right knee falling out of a truck in Vietnam.  For the purposes of obtaining a VA examination or medical opinion, the Veteran need only submit lay evidence of an in-service incident.  As the record currently lacks an opinion regarding the etiology of any current right knee disabilities, the Board will remand this issue so that sufficient nexus evidence may be obtained. 

Bilateral Hearing Loss

Lastly, regarding the Veteran's claim for service connection for bilateral hearing loss, the Board acknowledges that the Veteran was provided a VA examination in August 2010.  During this examination, the examiner diagnosed the Veteran with mild sensorineural hearing loss in both ears-and the results of the Veteran's pure tone threshold testing indicated hearing loss of sufficient severity to qualify as a disability pursuant to 38 C.F.R. § 3.385.  Sensorineural hearing loss is considered a "chronic" disease which may be granted service connection presumptively.  See 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

The examiner then opined that the Veteran's hearing loss was less likely than not caused by military noise exposure.  In support of this opinion, the examiner noted that testing of the Veteran's hearing approximately one year after service in November 1968 demonstrated normal hearing.  

Unfortunately, the August 2010 VA examiner's opinion is inadequate for adjudicative purposes.  Specifically, the results of the November 1968 testing showing normal hearing at that time need not act as a bar to establishing service connection.  Rather, the Veteran need only demonstrate that he has a current hearing disability that is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  

As the examiner did not opine as to the cause of the Veteran's current bilateral sensorineural hearing loss and merely cited the results of November 1968 testing, the Board will also remand this issue so that an additional medical opinion may be obtained.

Records

Additionally, given the need to remand the foregoing issues for a VA examination and medical opinions any outstanding VA treatment records should also be obtained-particularly those dated since August 2010.

Accordingly, the case is REMANDED for the following action:

1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since August 2010.  If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such.

2. After Item (1) has been completed to the extent possible, send the Veteran's claims file to an appropriate VA clinician to issue a medical opinion as to the nature and etiology of the Veteran's hypertension.  The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician.  If the clinician determines that an examination should be conducted, one should be scheduled.  Thereafter, the clinician should address the following:

(a) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset in, was caused by, or is otherwise related to service.

(b) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused by the Veteran's diabetes.

(c) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was aggravated beyond its natural progression by the Veteran's diabetes.

If the Veteran's hypertension was worsened beyond its natural progression (aggravated) by his diabetes, please attempt to quantify the degree of aggravation beyond the baseline level that is attributable to the diabetes.

The clinician should note that, pursuant to the Court of Appeals for Veterans Claims holding in Frost v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1747 (Nov. 30, 2017), service connection for hypertension as caused or aggravated by diabetes is not barred merely because hypertension was diagnosed prior to diabetes. 

In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim. 

A complete rationale for any opinion rendered must be provided.  If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so.

3. After Item (1) is completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any right knee disability.  The clinician should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed.  The clinician should then address the following:  

(a) Please identify any current right knee disabilities by medical diagnosis.  Please note that although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing (May 2010) meet the criteria for a "current" diagnosis.  For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed.

(b) For each right knee disability identified, please state whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in, was caused by, or is otherwise related to service, to include falling out of a truck in Vietnam.

In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim. 

A complete rationale for any opinion rendered must be provided.  If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so.

4. After Item (1) has been completed to the extent possible, send the Veteran's claims file to an appropriate VA clinician to issue a medical opinion as to the nature and etiology of the Veteran's bilateral hearing loss.  The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician.  

Thereafter, the clinician should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss had its onset in, was caused by, or is otherwise related to service.

The clinician should note that VA has already acknowledged that the Veteran was exposed to loud noises in service due to combat in Vietnam.

In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. 

A complete rationale for any opinion rendered must be provided.  If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so.

5. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

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).




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs