Citation Nr: 18116554 Decision Date: 07/06/18 Archive Date: 07/06/18 DOCKET NO. 15-11 853 DATE: July 6, 2018 ORDER The appeal for service connection for peripheral neuropathy of left lower extremity is dismissed. The appeal for service connection for peripheral neuropathy of right lower extremity is dismissed. The application to reopen the previously denied claim of service connection for a respiratory disability is granted. The application to reopen the previously denied claim of service connection for diabetes mellitus is granted. REMANDED Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Board received notification in May 2018, that a withdrawal of the appeal for service connection for peripheral neuropathy of left lower extremity is requested. 2. Prior to the promulgation of a decision in the appeal, the Board received notification in May 2018, that a withdrawal of the appeal for service connection for peripheral neuropathy of right lower extremity is requested. 3. In a May 2005 rating decision, the RO declined to reopen the Veteran's claim for service connection for a respiratory disability. Additional evidence submitted since the RO’s May 2005 denial relates to an unestablished fact necessary to substantiate the claim. 4. In a May 2009 rating decision, the RO denied service connection for diabetes mellitus. Additional evidence associated with the claims file after the RO’s May 2009 denial relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for peripheral neuropathy of left lower extremity have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of the appeal for service connection for peripheral neuropathy of right lower extremity have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The RO’s May 2005 decision, declining to reopen a claim for service connection for a respiratory disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). Evidence submitted since the RO’s May 2005 denial is new and material; and the claim for service connection for a respiratory disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The RO’s May 2009 decision, denying service connection for diabetes mellitus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). Evidence submitted since the RO’s May 2009 denial is new and material; and the claim for service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to March 1996. In May 2018, the Veteran testified during a hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. Dismissed Claims 1. Service Connection for Peripheral Neuropathy of Left Lower Extremity 2. Service Connection for Peripheral Neuropathy of Right Lower Extremity Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the undersigned was notified at the scheduled hearing that the Veteran seeks to withdraw the appeal for service connection for peripheral neuropathy of the left lower extremity and for peripheral neuropathy of the right lower extremity. The Board finds the request to be fully informed. There remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for peripheral neuropathy of the left lower extremity and for peripheral neuropathy of the right lower extremity; and the claims are dismissed. Application to Reopen Claims for Service Connection VA may reopen and review claims that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), “new evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. The Veteran is not entitled to an examination prior to submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). 3. Respiratory Disability The RO denied service connection for a chronic lung disability in May 1996 on the basis that there was neither evidence of current respiratory disability, nor evidence relating any current respiratory disability to service. Service treatment records show that the Veteran had complaints of dyspnea on exertion in January 1996. On a report of medical history completed by the Veteran at that time, he reported shortness of breath and pain or pressure in chest. The Veteran's lungs were clear to auscultation at that time, and spirometry results were within normal limits. The April 1996 VA examination report shows that the Veteran was questioned about his reactive airway disease. He had not been a known “wheezer or asthmatic” or chronic cough or any striking dyspnea on exertion. The Veteran reportedly sometimes felt some fullness and tightness of breathing, when he had severe migraines and at times when he had severe heartburn. Examination revealed that respirations were even. There was full pressure for excursions and comfortable normal breath sounds. The diagnosis was history of reactive airway disease, not substantiated on this examination. Since then, in January 2005, the Veteran again reported trouble breathing and that he was unable to catch his breath. VA records show pulmonary aspiration and dyspnea were noted in 2005. In May 2005, the RO declined to reopen the Veteran's claim for service connection for chronic lung disability on the basis that the newly received treatment records did not demonstrate that a lung disability was first diagnosed in service or was the result of service. In October 2005, the Veteran denied shortness of breath. He reportedly had quit smoking two weeks earlier, and indicated that he used to smoke from one-to-four cigarettes per day. Clinical evaluation in November 2005 revealed that his lungs sounded clear, bilaterally. He denied any history of lung disease in June 2006. VA records, dated in January 2013, show that pulmonary function testing was not consistent with chronic obstructive pulmonary disease or asthma. Clinical evaluation revealed that lungs were clear to auscultation, and that there was limited inspiration with deep breaths; there were no wheezes, no rales, and no rhonchi. The VA physician indicated that gastroesophageal reflux disease sometimes can cause shortness of breath or wheezing, and that the Veteran was on the right treatment. In June 2013, the Veteran again submitted claims for service connection. In February 2014, he reported that his breathing was getting worse; and that he was inhaling stomach acid into his lungs. Atypical chest pain and shortness of breath were noted in June 2014. Dyspnea of unclear etiology was noted in July 2014. In August 2014, the Veteran reported that his shortness of breath started in 1995 while he was a paratrooper, and that he now had trouble taking a deep breath. He described a burning in the base of his left lung, and felt like there was fluid “sloshing around” in his left lung. He also had a cough that sometimes was productive. The February 2015 VA examination report reflects that the Veteran had no “undiagnosed illnesses,” and that no “diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology” were identified; and that there was no diagnosed condition. Nor was there any link to any perceived or actual environmental exposures from active service in Southwest Asia. Another VA examiner indicated in February 2015 that the Veteran neither has nor has ever been diagnosed with a respiratory disability. Recent chest X-rays and pulmonary function testing were normal. The VA examiner advised the Veteran that his pulmonary function was currently normal, but could be impaired in the future if he did not have surgery to address his chronic gastroesophageal reflux disease with repeated aspiration pneumonia. In May 2018, the Veteran testified that he was exposed to moldy barracks and burn pits in active service; and submitted medical articles—one which indicated that molds can cause lung disease by different mechanisms, and another which noted the increased prevalence of chronic lung disease among Veterans of wars in Iraq and Afghanistan. Here, the new evidence consists of the Veteran's statements that he inhaled stomach acid into his lungs, and a VA physician’s advice that this might impair his pulmonary functioning; and his reports of mold and environmental exposures, and the medical articles of record. New evidence will be presumed credible solely for determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Given the presumed credibility, the additional evidence is both new and material. Hence, the Veteran's claim for service connection for a respiratory disability is reopened. 38 U.S.C. § 5108. 4. Diabetes Mellitus In May 2009, the RO denied service connection for diabetes mellitus on the basis that service treatment records revealed no treatment or diagnosis for diabetes mellitus; and post-service records did not document diabetes mellitus within one year of release from active service. Since then, the Veteran again submitted claims for service connection in January 2013. The additional evidence was submitted, which indicated new onset of diabetes mellitus in May 2008. The Board finds that the evidence constructively of record, consisting of VA treatment records, was actually associated with the claims file after the May 2009 denial; and shows current disability and is considered new and material. Hence, the Veteran's claim for service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108. REASONS FOR REMAND 5. Respiratory Disability (Reopened Claim) The Veteran contends that service connection for a respiratory disability is warranted on the basis that he inhales stomach acid into his lungs; and that he was exposed to mold and burn pits in active service. A VA examiner in February 2015 noted that the Veteran's pulmonary function currently was normal, but that it could be impaired in the future if the Veteran did not have surgery to address his chronic gastroesophageal reflux disease with repeated aspiration pneumonia. Medical articles in the claims file reveal that mold can cause lung disease by different mechanisms, and note the increasing prevalence of chronic lung disease among Veterans of wars in Iraq and Afghanistan. Service connection already is in effect for gastroesophageal reflux disease with hiatal hernia and Barrett’s esophagitis. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has a current respiratory disability that either had its onset during service or is related to his active service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). 6. Diabetes Mellitus (Reopened Claim) The Veteran contends that service connection for diabetes mellitus is warranted on the basis that he had gained a lot of weight due to severe acid reflux, which contributed to his getting diabetes mellitus later in life. Medical articles in the claims file also link post-traumatic stress disorder (PTSD) with diabetes mellitus; and note the risk of diabetes mellitus in military servicemembers, in relation to combat deployment and mental health. Service connection already is in effect for PTSD and hypertension. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran’s current diabetes mellitus either had its onset during service or is related to his active service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). 7. Bilateral Hearing Loss Disability Records in the claims file reveal that the Veteran was a “no-show” for a VA examination scheduled in September 2014. In May 2018, the Veteran testified that he did not recall the exact details, but remembered that his truck battery would not start on one occasion; and that on another occasion, he was physically incapacitated due to a migraine headache. He testified that he had so many medical appointments, and that he tried not to miss them because they were critical to getting the help he needed. The Board notes that good cause has been shown, and the Veteran underwent a VA examination in January 2015. The January 2015 VA examination report reveals that the Veteran has sensorineural hearing loss at higher frequencies (6000 hertz or more) in each ear; and that the Veteran had a moderate probability for noise exposure in active service, based on his military occupational specialty as a mechanic. He also had more significant noise exposure from his affiliation with aviation and helicopter units. Specifically, the Veteran reported significant noise exposure as a paratrooper flying often in Chinook and other helicopters. In May 2018, he testified that he was told when last examined in 2015 that he was “starting to go deaf;” and reported his hearing loss as deteriorating post-service, which is capable of observation by a lay person. Service connection already is in effect for tinnitus. Accordingly, an examination is needed to determine whether the Veteran has a current hearing loss disability of either ear that either had its onset during service or is related to his active service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2015 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability. The examiner must opine as to: (a) Whether the appellant has a respiratory disability and if present whether it is at least as likely as not related to service—including exposure to mold and burn pits: (c) Whether it is at least as likely as not (1) caused or (2) aggravated (i.e., permanently increased in severity beyond the natural progress) by service-connected disability—that is, gastroesophageal reflux disease with hiatal hernia and Barrett’s esophagitis. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diabetes mellitus. The examiner must opine as to: (a) Whether it is at least as likely as not related to an in-service injury, event, or disease— including weight gain due to acid reflux, as reported by the Veteran; (b) Whether it at least as likely as not began during active service or within one year after discharge from service; and (c) Whether it is at least as likely as not (1) caused or (2) aggravated (i.e., permanently increased in severity beyond the natural progress) by service-connected disability—that is, PTSD and/or hypertension. 4. Schedule the Veteran a VA audiology examination to identify all current disability underlying the Veteran’s current complaints of bilateral hearing loss; and to obtain information as to the current nature and likely etiology of any current hearing loss disability of either ear. The examiner should specifically indicate whether the Veteran currently has hearing loss disability in either ear to an extent recognized as a disability for VA purposes. Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any such hearing loss disability of either ear had its onset in service, or is the result of disease or injury incurred during service. If other causes are more likely, those should be noted. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the claims on appeal. If the benefit sought is not granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board, if otherwise in order. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel