Citation Nr: 1808391 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-09 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, claimed as due to in-service exposure to herbicide agents. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for emphysema. 3. Entitlement to service connection for a prostate disability, to include as due to in-service exposure to herbicide agents. 4. Entitlement to service connection for erectile dysfunction, to include as due to in-service exposure to herbicide agents. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2017, the Veteran testified before the undersigned Veterans Law Judge by videoconference. A transcript of that hearing is of record. The issues of entitlement to service connection for emphysema, a prostate disability, erectile dysfunction, bilateral hearing loss, and tinnitus are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. An unappealed January 2007 rating decision denied service connection for diabetes mellitus. 2. Evidence received since the January 2007 rating decision is neither cumulative nor redundant and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicides during service in Korea. 4. An unappealed February 1979 rating decision denied service connection for emphysema. 5. Evidence received since the February 1979 rating decision is neither cumulative nor redundant and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2007 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for diabetes mellitus has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The February 1979 rating decision that denied service connection for emphysema is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 5. New and material evidence sufficient to reopen the claim of entitlement to service connection for emphysema has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a current disability, a Veteran must show the existence of a current disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Diabetes For a veteran who has been exposed to an herbicide agent during military service, service connection for diabetes mellitus will be presumed. 38 C.F.R. § 3.309(e) (2017). A Veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicide agents are known to have been applied during that period, as determined by the Department of Defense (DOD), shall be presumed to have been exposed during that service to herbicide agents, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv) (2017); 76 Fed. Reg. 4,245-4,247 (January 25, 2011). VA has extended the presumption of herbicide exposure to any Veteran that served in a unit determined by VA or DOD to have operated in the DMZ between April 1, 1968, and August 31, 1971. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. Prior to the issuance of the January 2007 rating decision, denying the Veteran's initial claim for service connection for diabetes mellitus, the Veteran reported that, while serving in Korea in 1969, he was given a temporary duty assignment with a unit at the DMZ where he was exposed to an herbicide agents, specifically Agent Orange. The Veteran indicated that he had developed diagnosed diabetes mellitus as a result of that exposure to herbicide agents. A January 2007 rating decision denied service connection for diabetes mellitus, stating that the Veteran's service personnel records did not contain any notation indicating that the Veteran served with a unit that operated in or near the DMZ as determined by DOD. Thus, evidence in this case can be considered new and material if it suggests that the Veteran served in a unit in Korea at the DMZ or was exposed to herbicide agents. Reviewing the evidence submitted since the January 2007 rating decision, at the June 2017 videoconference hearing, the Veteran again reported being assigned temporary duty with a unit stationed at the DMZ in 1969. The Veteran stated that, while serving there, he saw service members spraying a substance by the gates of the unit's compound. When he asked the service members what they were doing, they indicated that they were spraying Agent Orange. For the purposes of determining whether to reopen the claim for service connection for diabetes, the Board must consider the Veteran's June 2017 testimony to be credible. The Board finds that the Veteran's statements, indicating that he saw service members spraying Agent Orange, is new, as it was not previously of record at the time of the January 2007 rating decision. It is also material because it suggests that the Veteran was present at a unit that experienced Agent Orange exposure in Korea. New and material evidence having been received, the claim for service connection for diabetes mellitus is reopened. Having reopened the claim, the Board will review the evidence. The Veteran's service personnel records indicate that he was a vehicle mechanic, stationed with the 707th Maintenance Battalion, 7th Infantry Division in Korea between December 1968 and December 1969. The Veteran reported that he specialized in repairing tanks. The Veteran indicated that, from April 1969 to July 1969, he was sent to work with a different unit at the DMZ as a replacement for that unit's tank repairperson. The Veteran has reported that, during that period at the DMZ, he was exposed to herbicide agents. The record indicates that the Veteran served in Korea during the period in which herbicide agents were known to have been applied at the DMZ. The Veteran's unit, the 707th Maintenance Battalion, is not on the list of units determined by DOD to have operated in the DMZ. However, the record indicates that several units of the 7th Infantry Division, to which the Veteran's maintenance battalion was attached, are known to have operated in the DMZ during the Veteran's period of service. As a vehicle repairperson, the Veteran's in-service duties included repairing vehicles for the 7th Infantry Division. The Veteran has presented credible lay evidence, indicating that his duties included repairing vehicles for units at the DMZ. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran served at the DMZ during the applicable period for presumptive herbicide exposure and service connection for diabetes mellitus, on a presumptive basis, is granted. Emphysema A February 1979 rating decision denied service connection for emphysema. The evidence of record at that time included a March 1968 pre-induction report of medical history, on which the Veteran indicated that he had experienced shortness of breath and was treated with pills about six years prior to the writing of the report. The March 1968 pre-induction service medical examination report was normal. In January 1969 service medical records, the Veteran reported experiencing nasal congestion, weakness, pain on the left side of his chest, coughing, and bloody sputum in the mornings for the previous month. After an examination, a service examiner's impression was an upper respiratory infection, rule-out tuberculosis. The Veteran was kept overnight in the dispensary and was discharged the next day when tests came back negative. Subsequent service medical records contain no notation indicating any treatment or diagnosis for emphysema. The Veteran's post-service treatment records showed no notation indicating treatment or diagnosis for emphysema prior to February 1979. The February 1979 rating decision denied service connection for emphysema because the record contained no evidence indicating an emphysema diagnosis. Thus, evidence in this case can be considered new and material if it suggests that the Veteran had been diagnosed with emphysema. At the June 2017 Board videoconference hearing, the Veteran stated that VA had diagnosed him as having emphysema. The Veteran is competent to report what he was told by a physician. Presuming the Veteran's statements to be true for the purpose of determining if they are material, the Board finds that that evidence new, as it was not previously of record at the time of the January 2007 rating decision. It is also material because it suggests that the Veteran has an emphysema disability that, the Veteran maintains, is related to service. New and material evidence having been received, the claim for service connection for emphysema is reopened. To that extent only, the appeal is allowed. ORDER The claim of entitlement to service connection for diabetes mellitus is reopened. Entitlement to service connection for diabetes mellitus is granted. The claim of entitlement to service connection for emphysema is reopened and, to that extent only, the appeal is granted. REMAND Regarding all of the claimed disabilities, the Veteran has stated that his regular physician was Dr. James Sullivan, who worked at the Scotland Medical Center in Laurinburg, North Carolina. The Veteran indicated that Dr. Sullivan recently passed away, but made no indication that passing would affect VA's ability to procure records from any depository where they might be held. A remand is necessary to obtain any outstanding private treatment records. Regarding the claim for service connection for emphysema, the Veteran has stated that he experienced breathing problems during service and after service. At the June 2017 Board videoconference hearing, the Veteran indicated that he underwent treatment for breathing problems at the VA Medical Center in Fayetteville, North Carolina, within a year of his 1971 discharge from service. The Veteran also indicated that he was diagnosed with emphysema by a VA examiner in 1992. As the records regarding the Veteran's 1971 and 1992 treatment are not included in the claims file, a remand is necessary to obtain additional treatment records regarding the Veteran's claimed emphysema. Moreover, a remand is necessary to schedule a VA medical examination to determine the etiology of claimed emphysema. Regarding the claims for service connection for prostate and erectile dysfunction disabilities, at the June 2017 Board videoconference hearing, the Veteran indicated that he was treated for difficulties urinating by Dr. Lord McCaskill in Maxton, North Carolina, in 1972. The Veteran also reported being treated for both disabilities at the VA medical facilities in Pembroke and Fayetteville. As the claims file does not contain any records regarding treatment for the claimed disabilities from the offices of Dr. McCaskill or the VA facilities mentioned by the Veteran, a remand is necessary to obtain additional treatment records regarding the Veteran's claimed prostate and erectile dysfunction disabilities. Moreover, a remand is necessary to schedule a VA medical examination to determine the etiologies of the claimed prostate and erectile dysfunction disabilities. Regarding the claimed bilateral hearing loss and tinnitus, at the June 2017 Board videoconference hearing, the Veteran stated that he went for a hearing examination in approximately 2014 in Fayetteville. Additionally, in a September 2017 private audiology report, from the offices of Laurinburg ENT, the Veteran indicated that he would return to see if any further testing need to be done medically. As the claims file does not contain any records regarding the 2014 treatment in Fayetteville or any records dated after September 2017, a remand is necessary to obtain additional treatment records regarding the Veteran's claimed bilateral hearing loss and tinnitus disabilities. Moreover, a remand is necessary to schedule a VA medical examination to determine the etiology of the claimed bilateral hearing loss and tinnitus. Accordingly, the appeal is REMANDED for the following action: 1. After obtaining any necessary releases, obtain and associate with the claims file all outstanding records of treatment for claimed emphysema, prostate, erectile dysfunction, bilateral hearing loss, and tinnitus disabilities. The Veteran should be specifically asked about providing information that would allow VA to obtain records of any 2014 treatment for hearing loss. Associate all records or responses received with the record. All efforts to obtain records should be fully documented. At a minimum, obtain all outstanding VA records, to include any dating back to the date of the Veteran's discharge; and if properly completed release forms are procured, obtain all records from Scotland Medical Center and Laurinburg ENT, and the offices of Dr. James Sullivan and Dr. Lord McCaskill. 2. Then, schedule the Veteran for a VA medical examination with a pulmonologist to determine the etiology of the claimed emphysema disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, to include the March 1968 pre-induction report of the Veteran's medical history and the January 1969 records indicating treatment for an upper respiratory infection; the post-service treatment records, to include the November 1978 chest X-ray; and the Veteran's lay statements. A complete rationale should be provided for all opinions and conclusions. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, the examiner is asked to also provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that any current pulmonary disability is related to active service or any incident of active service, to include the diagnosed in-service upper respiratory disorder. 3. Then, schedule the Veteran for a VA medical examination with an urologist to determine the etiologies of claimed prostate and erectile dysfunction disabilities. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the Veteran's lay statements. A complete rationale should be provided for all opinions and conclusions. All appropriate tests or studies should be accomplished and all clinical findings should be reported in detail. After an examination, the examiner is asked to also provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed prostate disability is related to active service or any incident of active service, to include presumed in-service herbicide agent exposure? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed erectile dysfunction disability is related to active service or any incident of active service, to include presumed in-service herbicide agent exposure? 4. Then, schedule the Veteran for a VA audiology examination to determine the etiology of claimed bilateral hearing loss and tinnitus disabilities. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the Veteran's lay statements. In reviewing the record, the examiner should note the April 2012 VA medical examination report, in which a VA examiner indicated that the Veteran most likely developed hearing loss, in part, due to exposure to noise while deer hunting. The Board notes that the April 2012 examiner did not make any statements regarding how often the Veteran went deer hunting or how many times he was exposed to loud noise during each occasion, or the total noise exposure due to deer hunting. In writing the report, the examiner should provide more information regarding the Veteran's noise exposure during post-service activities, especially in comparison with that experienced by the Veteran during service. A complete rationale should be provided for all opinions and conclusions. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, the examiner is asked to also provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral hearing disability is related to active service or any incident of active service, to include in-service noise exposure during training and the completion of the Veteran's duties as a vehicle mechanic? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed tinnitus disability is related to active service or any incident of active service, to include in-service noise exposure during training and the completion of the Veteran's duties as a vehicle mechanic? 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs