Citation Nr: 1808421 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-31 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service connected tuberculosis. 4. Entitlement to service connection for a heart attack and residuals thereof, to include as secondary to diabetes mellitus, type II, and/or service connected bilateral pneumothoraces, bronchitis, and pleurisy. 5. Entitlement to service connection for a stroke and residuals thereof, to include as secondary to diabetes mellitus, type II, and/or service connected bilateral pneumothoraces, bronchitis, and pleurisy. 6. Entitlement to a rating in excess of 60 percent for bilateral pneumothoraces, bronchitis, and pleurisy. REPRESENTATION Appellant represented by: Charles W. Morrison, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active military service from February 1952 to November 1953. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2017. A copy of the transcript has been reviewed and associated with the claims file. The issues of entitlement to service connection for diabetes mellitus, type II, heart attack, stroke, bilateral hearing loss and an increased rating for bilateral pneumothoraces, bronchitis, and pleurisy are in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 1987 decision, the Board denied service connection for bilateral hearing loss. The Veteran did not appeal the Board's decision. 2. The evidence received since the April 1987 Board decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran's claim of service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for reopening the claim of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The issue adjudicated herein has been granted in full, as discussed below. As such, the Board finds that any error related to the duty to notify/assist is harmless. Legal Criteria Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Factual Background and Analysis The claim of service connection for bilateral hearing loss was denied in an April 1987 Board decision because hearing loss was not present in service and did not manifest to a compensable degree within one year of discharge. The evidence of record at the time of the April 1987 Board decision consisted of the Veteran's DD Form 214, page one of his November 1953 separation examination, claim for bilateral hearing loss dated in October 1983, February 1984 statement by the Veteran indicating his hearing loss stemmed from his service in Korea, October 1984 and November 1985 informal hearing presentation, June 1983 and March 1985 treatment notes, and March 1984 audiogram. As set forth above, in an April 1987 decision, the Board denied service connection for bilateral hearing loss. The record shows that the Veteran did not appeal the Board's April 1987 decision. Thus, the Board's April 1987 decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 20.1104 (2017). The Veteran now seeks to reopen his claim of service connection for bilateral hearing loss on the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 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. Id. Since the April 1987 Board decision, additional VA treatment records, a February 1991 audiological evaluation, and hearing testimony have been associated with the claims file. After a review of the record, the Board finds that new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. The evidence is new, as it was not part of the record at the time of the April 1987 Board decision. It is also material as it relates to an unestablished fact necessary to substantiate the claim. The newly added evidence suggests that the Veteran's bilateral hearing loss is related to his military job duties. Specifically, the Veteran testified that he was a gunner on a 105 Howitzer. His missions would last four to six days and he was required to fire at will. He noticed his hearing loss while serving in Korea and noticed it more when he was speaking over the telephone. The additional evidence describes his military duties and that he noticed his hearing loss in Korea while speaking over the telephone. Accordingly, the evidence is new and material and the claim of service connection for bilateral hearing loss is reopened. ORDER New and material evidence having been received, the petition to reopen the claim of service connection for bilateral hearing loss is granted. REMAND I. Bilateral Hearing Loss The Veteran asserts that he has a bilateral hearing loss as a result of working as a gunner in service. The Veteran has not been provided a VA examination and the Board finds that one would assist in the adjudication of this issue. Indeed, given that the current evidence suggests that the Veteran has a current disability which may have had its onset during service, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his hearing loss. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Accordingly, the Board finds that a remand is warranted in order for a VA examination to be scheduled to assess the nature and etiology of his bilateral hearing loss. II. Diabetes Mellitus, Type II The Veteran has been assessed with diabetes mellitus, type II, and asserts it was incurred as a result of his service connected tuberculosis. The Veteran has not been provided a VA examination and the Board finds that one would assist in the adjudication of this issue. Given that the Veteran has a current diagnosis of diabetes mellitus, type II, and the Veteran asserts it is related to his service connected tuberculosis, the Board finds that a VA examination is warranted. Accordingly, the Board finds that a remand is warranted in order for a VA examination to be scheduled to assess the nature and etiology of his diabetes mellitus, type II, including if it is secondary to his service connected tuberculosis. III. Heart Attack The Veteran has been assessed with coronary artery disease/ischemic heart disease. He suffered a myocardial infarction in March 2013 and subsequently underwent coronary bypass surgery. He asserts that his heart disability is the result of his diabetes mellitus, type II, and/or his service connected bilateral pneumothoraces, bronchitis, and pleurisy. A VA examination was performed in December 2013, at which time the examiner opined that the Veteran's heart attack, ischemic heart disease disability, and its residuals were less likely than not caused by, related to, or permanently aggravated beyond the normal progression of the disease by his service connected bilateral pneumothoraces, bronchitis, and pleurisy. The Board finds the December 2013 VA examination is insufficient to determine the present claim. The examiner failed to provide a direct service connection opinion, i.e., whether the Veteran's heart disability is etiologically related to service. Furthermore, the Veteran has asserted that his heart disability may be related to his diabetes mellitus, type II, which is currently pending on appeal. Accordingly, the Board finds that a new VA examination is warranted to determine the nature and etiology of his heart disability. IV. Stroke The Veteran was assessed with a thalamic stroke in June 2012 and continues to require medication for control. He asserts that his stoke and residuals thereof are the result of his diabetes mellitus, type II, and/or his service connected bilateral pneumothoraces, bronchitis, and pleurisy. A VA examination was performed in December 2013, at which time the examiner concluded that the Veteran's stroke and residuals thereof were less likely than not caused by, related to, or permanently aggravated beyond the normal progression of the disease by his service connected bilateral pneumothoraces, bronchitis, and pleurisy. The Board finds the December 2013 VA examination is insufficient to determine the present claim. The examiner failed to provide a direct service connection opinion, i.e., whether the Veteran's stroke disability is etiologically related to service. Furthermore, the Veteran has asserted that his stroke and residuals thereof may be related to his diabetes mellitus, type II, which is currently pending on appeal. Accordingly, the Board finds that a new VA examination is warranted to determine the nature and etiology of his stroke and residuals thereof. V. Increased rating for bilateral pneumothoraces, bronchitis, and pleurisy The Veteran is currently service connected for bilateral pneumothoraces, bronchitis, and pleurisy. He testified at a Board hearing in November 2017 and indicated that his pulmonary problems are worsening because of fibrosis. The last VA examination was performed in January 2016. However, pulmonary function testing (PFT) was not performed at that time because the Veteran was scheduled for surgery. Accordingly, the Board finds that a new VA examination is warranted to assess the current +severity of his service connected bilateral pneumothoraces, bronchitis, and pleurisy. Furthermore, the last VA treatment records contained in the claims file are dated in April 2016. Accordingly, on remand, the Veteran's updated VA treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file the Veteran's VA treatment records from April 2016 to the present. 2. After completion of number 1, schedule the Veteran for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hearing loss disability is related to active service. The examiner should note that Veteran worked as a gunner in service and was exposed to artillery fire. The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 3. After completion of number 1, schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus, type II. The claims file, including this remand, is to be reviewed by the examiner so that he or she may become familiar with the pertinent medical history of his diabetes mellitus, type II, and this review should be noted in the examination report. The examiner should provide the following opinions: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's diabetes mellitus, type II, is caused by his service connected tuberculosis? B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's diabetes mellitus, type II, has been aggravated (chronically worsened) by his service connected tuberculosis? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the diabetes mellitus, type II, prior to aggravation? C. If the Veteran's diabetes mellitus, type II, is not caused or aggravated by his service connected tuberculosis, is it at least as likely as not (probability of at least 50 percent) that the diabetes mellitus, type II, is etiologically related to and/or had its onset during his period of active service? The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 4. After completion of number 1, schedule the Veteran for a VA examination to determine the nature and etiology of his heart disability, including coronary artery disease/ischemic heart disease and heart attack and residuals thereof. The claims file, including this remand, is to be reviewed by the examiner so that he or she may become familiar with the pertinent medical history of his heart disability and this review should be noted in the examination report. The examiner should provide the following opinions: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's heart disability is caused by his service connected bilateral pneumothoraces, bronchitis, and pleurisy? B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's heart disability has been aggravated (chronically worsened) by his service connected bilateral pneumothoraces, bronchitis, and pleurisy? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the heart disability prior to aggravation? C. If service connection is found for the Veteran's diabetes mellitus, type II, is it at least as likely as not (probability of at least 50 percent) that the Veteran's heart disability is caused by his diabetes mellitus, type II? D. If service connection is found for the Veteran's diabetes mellitus, type II, is it at least as likely as not (probability of at least 50 percent) that the Veteran's heart disability has been aggravated (chronically worsened) by his diabetes mellitus, type II? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the heart disability prior to aggravation? E. If the Veteran's heart disability is not caused or aggravated by his service connected bilateral pneumothoraces, bronchitis, and pleurisy and/or diabetes mellitus, type II, is it at least as likely as not (probability of at least 50 percent) that the heart disability is etiologically related to and/or had its onset during his period of active service? The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 5. After completion of number 1, schedule the Veteran for a VA examination to determine the nature and etiology of his stroke and residuals thereof. The claims file, including this remand, is to be reviewed by the examiner so that he or she may become familiar with the pertinent medical history of his stroke disability and this review should be noted in the examination report. The examiner should provide the following opinions: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's stroke disability is caused by his service connected bilateral pneumothoraces, bronchitis, and pleurisy? B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's stroke disability has been aggravated (chronically worsened) by his service connected bilateral pneumothoraces, bronchitis, and pleurisy? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the stroke disability prior to aggravation? C. If service connection is found for the Veteran's diabetes mellitus, type II, is it at least as likely as not (probability of at least 50 percent) that the Veteran's stroke disability is caused by his diabetes mellitus, type II? D. If service connection is found for the Veteran's diabetes mellitus, type II, is it at least as likely as not (probability of at least 50 percent) that the Veteran's stroke disability has been aggravated (chronically worsened) by his diabetes mellitus, type II? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the stroke disability prior to aggravation? E. If the Veteran's stroke disability is not caused or aggravated by his service connected bilateral pneumothoraces, bronchitis, and pleurisy and/or diabetes mellitus, type II, is it at least as likely as not (probability of at least 50 percent) that the stroke disability is etiologically related to and/or had its onset during his period of active service? The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 6. After completion of number 1, schedule the Veteran for a VA pulmonary examination to determine the nature and severity of his service connected bilateral pneumothoraces, bronchitis, and pleurisy. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history. The examination report must include a notation that this record review took place. All appropriate test and studies, including pulmonary function testing, should be accomplished with the results made available to the examiner prior to the completion of his or her report. The examiner should identify the nature and severity of all manifestations of the Veteran's service connected bilateral pneumothoraces, bronchitis, and pleurisy, including whether the Veteran has fibrosis and whether it is secondary to his service connected lung disabilities. The pulmonary function test should contain the full range of results necessary to rate the disability under the Diagnostic Code (FEV-1, FVC, DLCO, FEV-1/FEV). The presence or absence of right ventricular hypertrophy, cor pulmonale, pulmonary hypertension, episodes of acute respiratory failure, or the use of outpatient oxygen therapy should also be documented. All opinions expressed must be accompanied by a supporting rationale. 7. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs