Citation Nr: 1807821 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-15 334A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence was received to reopen a service connection claim for bilateral hearing loss. 2. Whether new and material evidence was received to reopen a service connection claim for peripheral neuropathy to the upper extremities, to include as secondary to a service-connected disability. 3. Entitlement to service connection for peripheral neuropathy to the upper extremities, to include as secondary to a service-connected disability. 4. Entitlement to service connection for coronary artery disease, to include as secondary to a service-connected disability. 5. Entitlement to service connection for renal disease, to include as secondary to a service-connected disability. 6. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected disability. 7. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus. 8. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to October 1967, including service in the Republic of Vietnam from July 1966 to July 1967 This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2011 and February 2012 by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran withdrew his request for a Board hearing by correspondence dated in March 2017. Although the RO has adjudicated the bilateral hearing loss and peripheral neuropathy of the upper extremities issues on the merits, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). These issues were previously addressed in a July 2010 rating decision. For this reason, the Board has listed the issues on the title page as whether new and material evidence has been submitted to reopen the claim for service connection. The issues of entitlement to service connection for renal disease, a right knee disorder, and peripheral neuropathy to the upper extremities and entitlement to increased ratings for type II diabetes mellitus and left knee degenerative joint disease 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 rating July 2010 rating decision denied entitlement to service connection for bilateral hearing loss and peripheral neuropathy to the upper extremities. 2. Evidence added to the record since the July 2010 rating decision is cumulative of the evidence already of record. With regard to the claim for service connection for bilateral hearing loss. 3. Evidence added to the record since the July 2010 rating decision relates to the basis for the prior denial and raises a reasonable possibility of substantiating the service connection claim for peripheral neuropathy to the upper extremities. 4. The Veteran's coronary artery disease is presumed to have developed as a result of herbicide agent exposure. CONCLUSIONS OF LAW 1. A July 2010 rating decision which denied entitlement to service connection for bilateral hearing loss and peripheral neuropathy to the upper extremities is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence was not received with regard to the claim for entitlement to service connection for bilateral hearing loss, and the criteria for reopening of this claim have therefore not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence was received with regard to the claim for entitlement to service connection for peripheral neuropathy to the upper extremities, and the criteria for reopening of this claim have therefore been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for coronary artery disease as a result of herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Claims VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). The United States Court of Appeals for Veterans Claims has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A July 2010 rating decision denied entitlement to service connection for bilateral hearing loss and peripheral neuropathy of the upper extremities. The RO, in essence, found hearing loss and upper extremity neurological disorders were not due to service. The Veteran was notified of the decisions and his appellate rights, but did not appeal. No new and material evidence as to these matters was added to the record within the one year appeal period. Accordingly, the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). The Board finds that the evidence received since the July 2010 rating decision is essentially cumulative. The evidence before the RO at the time of the prior denial indicated that the Veteran had a current hearing loss disability and in-service noise exposure, to include as consistent with his military occupation specialty of construction machine operator. The evidence added to the claims file since that time, including VA and private treatment records, time includes evidence that continues to show current hearing loss disability and in-service noise exposure, but does not contain an opinion as to etiology the etiology of the hearing loss or otherwise provide new evidence relating to a nexus between the hearing loss and service. The evidence received since the most recent prior denial is therefore cumulative of the evidence previously of record. The criteria for reopening the claim for service connection for hearing loss have therefore not been met. The Board finds, however, that the evidence received since the July 2010 rating decision as to the peripheral neuropathy to the upper extremities issue raises a reasonable possibility of substantiating the service connection claim. The evidence includes a July 2013 VA Diabetes Mellitus Disability Benefits Questionnaire (DBQ) noting complications including diabetic peripheral neuropathy. This evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. The criteria for reopening the claim for service connection for peripheral neuropathy of the upper extremities have therefore been met. Service Connection Claim Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain disorders, including coronary artery disease, if manifest to a degree of 10 percent or more for a veteran exposed to herbicide agents may be presumed service connected. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). The term ischemic heart disease, for presumptive service connection purposes, does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note 3 (2017). Private treatment records dated in April 2012 noted a diagnosis of atherosclerosis with claudication. Subsequent VA treatment records included diagnoses of coronary artery disease and show the Veteran underwent stent placement in May 2015. The evidence of record thus demonstrates that the Veteran served in Vietnam and his exposure to herbicide agents is conceded. Further, as indicated, a diagnosis of coronary artery disease has been established. There is no evidence indicating that the disorder was not incurred as a result of service. Therefore, entitlement to service connection for coronary artery disease is warranted. ORDER The application to reopen a previously denied claim for service connection for bilateral hearing loss is denied. The application to reopen a previously denied claim for service connection for peripheral neuropathy to the upper extremities is granted. Entitlement to service connection for coronary artery disease is granted. REMAND Additional development is required as to the issues remaining on appeal. The Veteran contends that he has renal disease and peripheral neuropathy to the upper extremities as a result of his service-connected type II diabetes mellitus and that he has a right knee disorder as a result of his service-connected left knee degenerative joint disease. The Board notes that service connection is established for prostate cancer (100 percent); status post cerebrovascular accident (stroke) associated with type II diabetes mellitus (100 percent); peripheral arterial disease to the right lower extremity status angioplasty associated with type II diabetes mellitus (60 percent); peripheral arterial disease to the left lower extremity status angioplasty associated with type II diabetes mellitus (60 percent); type II diabetes mellitus (20 percent); left knee degenerative joint disease (10 percent); left lower extremity muscle weakness associated with status post cerebrovascular accident (stroke) (10 percent); right lower extremity muscle weakness associated with status post cerebrovascular accident (10 percent); and bowel dysfunction associated with status post cerebrovascular accident (10 percent). The available medical evidence, including reports added to the record after the March 2014 statement of the case. An April 2011 VA neurology report noted electromyography and nerve conduction studies consistent with bilateral carpal tunnel syndrome and diabetic neuropathy, but the examiner found the Veteran's bilateral hand numbness was more consistent with bilateral carpal tunnel syndrome. A July 2013 VA Diabetes Mellitus DBQ noted complications including diabetic peripheral neuropathy without indication as to upper or lower extremity involvement. An October 2011 report also noted acute renal failure and significant drug interaction with Amlodipine and Simvastatin. A May 2015 VA treatment report included a diagnosis of acute kidney injury probably pre-renal secondary to Lasix use. A May 2016 report noted the Veteran had been prescribed human insulin. An August 2016 report included a diagnosis of slightly echogenic kidneys possibly secondary to chronic changes. In light of the evidence indicating the Veteran's service-connected type II diabetes mellitus may have increased in severity, a new VA examination as to the current severity of this disability is required. The Board also notes that a September 2016 VA treatment report noted severe degenerative joint disease to the left and right knees. The Veteran reported that he experienced symptoms including limited motion, instability, giving way, and locking. His knees were last evaluated by VA examination in October 2011. The Board finds that the October 2011 examination is inadequate and that an additional examination is required. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159. 3.327 (2017); see also El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). An adequate orthopedic examination of the knees should also record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). Prior to any examination, up-to-date VA treatment records should be obtained. Accordingly, the claims remaining on appeal are REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Schedule the Veteran for an appropriate VA examination for opinions as to the current nature of his service-connected type II diabetes mellitus and whether it is at least as likely as not (50 percent probability or greater) that he has present renal disease and/or peripheral neuropathy to the upper extremities that: a. had its onset in service, or b. is etiologically related to his active service, or c. was caused by a service-connected disability, or d. was aggravated by a service-connected disability. All necessary tests and studies should be conducted. The examinations should be conducted in accordance with the current disability benefits questionnaires. Rationale for the requested opinion must be provided. 3. Schedule the Veteran for a VA orthopedic examination for opinions as to the current nature of his service-connected left knee degenerative joint disease and whether it is at least as likely as not (50 percent probability or greater) that he has a right knee disorder that: a. had its onset in service, or b. is etiologically related to his active service, or c. was caused by a service-connected disability, or d. was aggravated by a service-connected disability. All necessary tests and studies should be conducted. The examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information to the right and left knees, must address the necessary findings to evaluate functional loss during flare-ups. Rationale for the requested opinion must be provided. The examination should be conducted in accordance with the current disability benefits questionnaire. 4. Thereafter, the AOJ should address the issues remaining on appeal. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs