Citation Nr: 18161246 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-31 331A DATE: December 31, 2018 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim for service connection for tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to special monthly compensation based on loss of use of a creative organ is remanded. FINDINGS OF FACT 1. In a May 2006 rating decision, the RO denied service connection for hearing loss and tinnitus. The Veteran filed a notice of disagreement (NOD), but he did not submit a timely substantive appeal following the issuance of a statement of the case (SOC) in October 2006. 2. The evidence received since the May 2006 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for hearing loss. 3. In a December 2007 rating decision, the RO denied service connection for tinnitus. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 4. The evidence received since the December 2007 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus. 5. The Veteran does not have hearing loss that manifested in service or within one year thereafter or that is otherwise related to his military service. 6. The Veteran does not have tinnitus that manifested in service or within one year thereafter or that is otherwise related to his military service. CONCLUSIONS OF LAW 1. The May 2006 rating decision denying service connection for hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the May 2006 rating decision is new and material as to the claim for service connection for hearing loss, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The December 2007 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 4. The evidence received since the December 2007 rating decision is new and material as to the claim for service connection for tinnitus, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. Hearing loss was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1132, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 6. Tinnitus was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1132, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was held before the undersigned Veterans Law Judge in June 2018. A transcript of the hearing has been associated with the claims file. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. 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 In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary’s duty to assist. Id. at 118. The RO previously considered and denied a claim for service connection for hearing loss and tinnitus in March 2005 and May 2006 rating decisions. In the May 2006 VA rating decision, the RO found that the evidence did not show that the disorders were related to the Veteran’s military service. Although the Veteran was diagnosed with tinnitus and mild sensorineural hearing loss of the left ear, the VA examiner opined that it was most likely age-related and not caused or aggravated by noise exposure in military service. The Veteran was notified of this action and of his appellate rights and filed a timely Notice of Disagreement in June 2006. The RO issued an SOC in October 2006, but the appellant did not file a timely substantive appeal or submit new and material evidence within one year. See Buie v. Shinseki, 24 Vet. App. 242 (2011); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Therefore, the May 2006 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. In July 2007, the Veteran filed a claim to reopen his previously denied claim for service connection for tinnitus, which was denied in a December 2007 rating decision. The RO determined that the Veteran did not submit new and material evidence showing tinnitus in service or current tinnitus due to or the result of service. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year appeal period. Therefore, the December 2007 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. At the time of the May 2006 and December 2007 VA rating decisions, the evidence of record included the Veteran’s service treatment records, post-service medical records, and a January 2005 VA examination report. The evidence received since the May 2006 and December 2007 rating decisions includes a March 2012 VA audiological consultation and the Veteran’s June 2018 hearing testimony alleging bilateral hearing loss and tinnitus beginning immediately after service. The Veteran alleged significant noise exposure during wartime service in Vietnam, including from incoming mortar round explosions. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claims, and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claims for service connection for hearing loss and tinnitus is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system (including sensorineural hearing loss and tinnitus) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (including sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for hearing loss and tinnitus. The Veteran’s service treatment records are negative for any complaints, treatment or diagnosis of hearing loss or tinnitus. At separation, the Veteran checked the box “Yes” to indicate past or present ear, nose, or throat trouble; however, he specifically denied any history of hearing loss. To determine that a chronic disease was “shown in service,” the disease entity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not show that the Veteran had hearing loss or tinnitus during service. In fact, the Veteran testified at the June 2018 hearing that the disorders began after service. Therefore, chronicity is not established in service. Moreover, the evidence does not show that hearing loss and tinnitus manifested to a compensable degree within one year of the Veteran’s military service. Following his separation from service, there is no indication in the record to suggest that the Veteran sought treatment for tinnitus or hearing loss, and there is no evidence of either disorder within one year of his military service. Indeed, the Veteran did not complain of tinnitus or hearing loss for many years following his separation from service. Nor is there any evidence suggesting a continuity of symptomatology. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has claimed that he had noise exposure during his period of service and that this was the injury sustained from which his hearing loss and tinnitus resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In addition, the post-service medical records show that the Veteran has been diagnosed with bilateral hearing loss by VA standards, as well as tinnitus. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran’s current bilateral hearing loss and tinnitus are related to his noise exposure in service. The Veteran was afforded a VA examination in September 2004 during which he reported that he served in Vietnam and had significant noise exposure from artillery, bombs, and weapons. He denied having any significant post-military noise exposure. He indicated that his bilateral tinnitus beginning approximately 15 to 20 years earlier, which would have been many years after service, and noted that he had a long history of bilateral hearing loss that he believed was worsening. An audiogram revealed normal hearing in the right ear and mild high frequency sensorineural hearing loss in the left ear. There was no acoustic notch present in either ear. The VA examiner opined that the Veteran’s hearing loss and tinnitus were most likely age-related and less likely than not related to military service. The examiner stated that his current audiometric thresholds are most compatible with his current age. There is no other medical opinion indicating that the Veteran’s hearing loss and tinnitus are related to his military service. The March 2012 VA audiology consultation showed mild to moderate sensorineural hearing loss bilaterally. The Veteran also complained of tinnitus and dizziness when standing too quickly. See March 2012 VA treatment records. However, there was no opinion provided regarding the etiology of the Veteran’s hearing loss and tinnitus. In fact, the record was held open for 90 days following the Veteran’s June 2018 Board hearing, but the Veteran and his representative did not submit additional evidence in support of his claims. The Veteran also testified at the June 2018 hearing that he has not spoken to his treating physicians about whether his hearing loss and tinnitus are related to military service. The Board has also considered the statements of the Veteran asserting that his current tinnitus and hearing loss are related to his military service. However, to the extent that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than the Veteran’s lay assertions in this regard. The examiner reviewed the claims file and the Veteran’s own reported history, and he has training, knowledge, and expertise on which he relied to form his opinion. He also provided a rationale for the conclusion reached. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus and hearing loss. Because the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet App. 49, 53-56 (1990). Therefore, the Board concludes that service connection for tinnitus and hearing loss is not warranted. REASONS FOR REMAND The Veteran was afforded a VA examination in February 2012 during which the VA examiner opined that the Veteran’s hypertension was not caused or aggravated by his service-connected diabetes mellitus because his renal function is normal and diabetes mellitus does not cause hypertension in a patient with normal renal function. Rather, it is most likely that the Veteran has essential or primary hypertension. A March 2011 VA examiner also opined that the Veteran’s peripheral neuropathy of the upper extremities and erectile dysfunction are less likely than not related to his service-connected diabetes mellitus because they preceded the onset of his diabetes mellitus. Nevertheless, during the June 2018 hearing, the Veteran and his representative advanced several new theories of entitlement, including that his hypertension, peripheral neuropathy and erectile dysfunction are due to stress in service, medication to control his service-connected diabetes mellitus, and/or herbicide exposure. These alternative theories of entitlement to service connection have not been previously considered, and there are no medical opinions addressing them The Veteran’s service personnel records confirm that he served in the Republic of Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicides, including Agent Orange. 38 C.F.R. § 3.307(a)(6), 3.313(a). Although hypertension and erectile dysfunction are not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Early-onset peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection under 38 C.F.R. § 3.309(e). The Board notes that a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). For these reasons, the Board finds that additional medical opinions are needed to determine the nature and etiology of the Veteran’s claimed hypertension, peripheral neuropathy of the bilateral upper extremities, and erectile dysfunction. Moreover, the issue of special monthly compensation for loss of use of a creative organ is inextricably intertwined with the issue of service connection for erectile dysfunction. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, the Board must defer consideration of this claim until the development is complete on the issue of service connection for erectile dysfunction. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers not already of record who have provided treatment for hypertension, peripheral neuropathy and erectile dysfunction. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also request any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has hypertension that is causally or etiologically related to his military service, including any stress and exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). The examiner should also provide an opinion as to whether it is at least as likely as not that any current hypertension is either caused by or permanently aggravated by his service-connected type II diabetes mellitus, to include any medications used to treat the latter disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy of the bilateral upper extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has peripheral neuropathy of the bilateral upper extremities that is causally or etiologically related to his military service, including any stress and exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). The examiner should also provide an opinion as to whether it is at least as likely as not that any current peripheral neuropathy of the bilateral upper extremities is either caused by or permanently aggravated by his service-connected type II diabetes mellitus, to include any medications used to treat the latter disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any erectile dysfunction that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has erectile dysfunction that is causally or etiologically related to his military service, including any stress and exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). The examiner should also provide an opinion as to whether it is at least as likely as not that any current erectile dysfunction is either caused by or permanently aggravated by his service-connected type II diabetes mellitus, to include any medications used to treat the latter disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel