Citation Nr: 21004503 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-00 646A DATE: January 27, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for tinnitus prior to the Veteran’s death; the petition to reopen the claim granted. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss prior to the Veteran’s death; the petition to reopen the claim granted. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for diabetes mellitus type II (DM) with diabetic complications prior to the Veteran’s death; the petition to reopen the claim granted. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for chronic prostatitis prior to the Veteran’s death; the petition to reopen the claim granted. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for chronic ischemic heart disease prior to the Veteran’s death; the petition to reopen the claim granted. Entitlement to service connection for tinnitus prior to the Veteran’s death is granted. REMANDED Entitlement to service connection for bilateral hearing loss prior to the Veteran’s death is remanded. Entitlement to service connection for DM and diabetic complications prior to the Veteran’s death is remanded. Entitlement to service connection for a prostate disability, to include chronic prostatitis and benign prostatitic hyperplasia, prior to the Veteran’s death is remanded. Entitlement to service connection for a heart disability, to include coronary artery disease and ischemic heart disease, prior to the Veteran’s death is remanded. Entitlement to service connection for hypertension prior to the Veteran’s death is remanded. Entitlement to service connection for status post pulmonary embolism prior to the Veteran’s death is remanded. Entitlement to service connection for an acquired psychiatric disorder prior to the Veteran’s death is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to the Veteran’s death is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) is remanded. FINDINGS OF FACT 1. A July 2003 rating decision denied, among other disabilities, entitlement to service connection for nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye. The Veteran did not timely appeal that decision and new and material evidence was not received within one year of the issuance of that decision. 2. An October 2010 rating decision denied, among other disabilities, entitlement to service connection for left ear tinnitus and determined that new and material evidence had not been received to reopen the claim for service connection for nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye. The Veteran did not timely appeal that decision and new and material evidence was not received within one year of the issuance of that decision. 3. An October 2014 rating decision denied, among other disabilities, entitlement to service connection for bilateral hearing loss, chronic ischemic heart disease, DM, diabetic peripheral neuropathy of all four extremities, and chronic prostatitis. The decision also determined that new and material evidence had not been received to reopen the claims for service connection for left ear tinnitus and nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye. The Veteran did not timely appeal that decision and new and material evidence was not received within one year of the issuance of that decision. 4. In November 2016, the Veteran submitted new evidence that related to an unestablished fact necessary to establish the claim of entitlement to service connection for tinnitus. 5. In November 2016, the Veteran submitted new evidence that related to an unestablished fact necessary to establish the claim of entitlement to service connection for bilateral hearing loss. 6. In November 2016, the Veteran submitted new evidence that related to an unestablished fact necessary to establish the claim of entitlement to service connection for DM with diabetic complications. 7. In November 2016, the Veteran submitted new evidence that related to an unestablished fact necessary to establish the claim of entitlement to service connection for chronic ischemic heart disease. 8. In November 2016, the Veteran submitted new evidence that related to an unestablished fact necessary to establish the claim of entitlement to service connection for chronic prostatitis. 9. The Veteran’s tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The July 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The October 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. The October 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 5. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 6. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for DM and diabetic complications. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 7. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for chronic ischemic heart disease. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 8. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for chronic prostatitis. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 9. The criteria for entitlement to service connection for tinnitus prior to the Veteran’s death is met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a), 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1958 to January 1960, with additional National Guard service. He died in March 2017. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claims pending at the time of his death to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2020, the AOJ determined that the appellant was an eligible substitute based on her status as the Veteran’s surviving spouse. See August 2020 Notification Letter; Appeal Substitution Review. The Board has broadened and recharacterized certain of the claims on appeal to ensure that the appellant is afforded every consideration. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board acknowledges the appellant’s requests that VA adjudicate her claim for survivor benefits including DIC, aid and attendance, unreimbursed medical expenses, and accrued benefits. While the appellant filed multiple VA Forms 21-4138 characterizing her appeal as seeking survivor benefits other than accrued benefits, she did not file a VA Form 21-534 (Application for Dependency and Indemnity Compensation, Survivors Pension, and Accrued Benefits). Regrettably, the record does not reflect than any VA employee forwarded her a form to claim this benefit. See 38 C.F.R. § 3.150. If the appellant wishes to file a claim for any other benefit, she is encouraged to file a claim on the appropriate VA form and is advised that she may work with a representative to assist her in this regard. 1. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for tinnitus prior to the Veteran’s death; the petition to reopen the claim granted. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss prior to the Veteran’s death; the petition to reopen the claim granted. 3. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for DM and diabetic complications prior to the Veteran’s death; the petition to reopen the claim granted. 4. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for chronic prostatitis prior to the Veteran’s death; the petition to reopen the claim granted. 5. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for chronic ischemic heart disease prior to the Veteran’s death; the petition to reopen the claim granted. A July 2003 rating decision denied, among other disabilities, entitlement to service connection for nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye. The Veteran did not timely appeal that decision and new and material evidence was not actually or constructively received within one year of the issuance of that decision. An October 2010 rating decision denied, among other disabilities, entitlement to service connection for left ear tinnitus and determined that new and material evidence had not been received to reopen the claim for service connection for nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye. The Veteran did not timely appeal that decision and new and material evidence was not received within one year of the issuance of that decision. An October 2014 rating decision denied, among other disabilities, entitlement to service connection for bilateral hearing loss, chronic ischemic heart disease, DM, and chronic prostatitis, and determined that new and material evidence had not been received to reopen the claims for service connection for left ear tinnitus and nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye. The Veteran did not timely appeal that decision and new and material evidence was not received within one year of the issuance of that decision. A final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Initially, the Board notes that the claim of entitlement to service connection for DM and diabetic complications is the same as the previously denied claims of entitlement to service connection for DM, nonproliferative diabetic retinopathy with diabetic macular edema and pseudophakia in the left eye, and diabetic peripheral neuropathy of all four extremities. Moreover, the claim of entitlement to service connection for coronary artery disease is the same as the previously denied claim of entitlement to service connection for chronic ischemic heart disease, and the claim of entitlement to service connection for benign prostate hyperplasia is the same as the previously denied claim of entitlement to service connection for chronic prostatitis. In this regard, each of these claims shares the same factual basis as the respective previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Clemons, 23 Vet. App. 1. Here, the lack of an etiological relationship between the claimed disability and the Veteran’s military service was a basis for each prior denial on the merits of the claims of entitlement to service connection for tinnitus, bilateral hearing loss, a heart disability, a prostate disability, and DM with diabetic complications. The October 2016 report of Dr. C.M.Q., submitted in November 2016, is new and material evidence. See October 2016 Dr. C.M.Q. Report. It is new because it was not previously of record, and it is material because it is evidence that relates to the presence of an etiological relationship between the claimed disabilities and the Veteran’s service. In this regard, while Dr. C.M.Q.’s opinion is not adequate for rating purposes when considered in light of the totality of the evidence of record, the law is clear that the determination as to whether evidence is “new and material” comes before any determination on the merits. See, e.g., Justus v. Principi, 3 Vet. App. 510, 512 (1992). Accordingly, as new and material evidence has been received, the claims are reopened. 6. Entitlement to service connection for tinnitus prior to the Veteran’s death is granted. Prior to his death, the Veteran asserted that his tinnitus began in service. See, e.g., October 2010 VA Form 21-526. 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, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system such as tinnitus, that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); 38 C.F.R. §§ 3.303(b), 3.309(a). Initially, the Board observes that the Veteran failed to report for an audiology examination prior to his death. See January 2017 Examination Scheduling Note. However, he had good cause for this failure to report, as he was bedridden and died shortly afterwards. See February 2017 VA Form 21-4138 (noting Veteran is bedridden and requesting that a decision be issued based on records in possession of Dr. A.R., his physician at the VA medical center); Death Certificate (died March 31, 2017). Thus, the provisions of 38 C.F.R. § 3.655(b) are not for application. Here, prior to the Veteran’s death he competently and credibly reported that his left ear tinnitus manifested in service and had continued through the present. See October 2010 VA Form 21-526; October 2016 Dr. C.M.Q. Report at 1 (noting Veteran’s report of tinnitus since service); February 2017 VA Form 21-0781a (noting the onset of “weird sounds like buzzing or water” since ear infections in service). In this regard, the Board emphasizes that the probative value of Dr. C.M.Q.’s report comes from his relaying the Veteran’s competent and credible statements, and not from Dr. C.M.Q.’s medical opinion. Furthermore, while the Veteran is not shown to have been competent to opine as to the etiology of the tinnitus manifested in service, he was competent to state the presence of tinnitus in service. Moreover, the Veteran’s statements are not contradicted by the record. The Veteran’s 1959 separation examination report does not show an audiogram and reflects “minor complaints of no clinical significance,” which is consistent with his report of symptoms that were not specifically documented by the examiner. Moreover, while the record includes treatment notes with general reviews of systems that do not note tinnitus, the record does not include a focused audiological examination where the Veteran denied tinnitus. Accordingly, given the Veteran’s competent and credible statements prior to his death as to the history of his disability and the continuity of his symptomatology, service connection for tinnitus for purposes of accrued benefits is warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). REASONS FOR REMAND 7. Entitlement to service connection for bilateral hearing loss prior to the Veteran’s death is remanded. The record does not show that the Veteran had hearing loss for VA compensation purposes. However, the Board observes that the Veteran’s complete VA treatment records have not been secured. Moreover, the record shows that the Veteran was in receipt of non-VA medical treatment prior to his death. See, e.g., April 2003 VA Form 21-4142; August 26, 2013 Active Outpatient Medications (noting non-VA medications). On remand, the Veteran’s complete VA treatment records should be secured and relevant outstanding private treatment records should be requested. 8. Entitlement to service connection for DM with diabetic complications prior to the Veteran’s death is remanded. 9. Entitlement to service connection for a prostate disability prior to the Veteran’s death is remanded. 10. Entitlement to service connection for a heart disability prior to the Veteran’s death is remanded. 11. Entitlement to service connection for hypertension prior to the Veteran’s death is remanded. 12. Entitlement to service connection for status post pulmonary embolism prior to the Veteran’s death is remanded. 13. Entitlement to service connection for an acquired psychiatric disorder prior to the Veteran’s death is remanded. The October 2016 Report of Dr. C.M.Q. includes a medical opinion that the Veteran’s disabilities (including DM with diabetic complications, heart, prostate, psychiatric, pulmonary, and circulatory conditions) are more likely than not related to his military service. See October 2016 Dr. C.M.Q. Report. On the present record, this opinion is inadequate, as the opinion does not include any rationale in support of its conclusion. Indeed, the Board observes that Dr. C.M.Q. stated that the Veteran’s medical conditions must be “carefully re-evaluated” in order to determine entitlement to veterans’ benefits. See id. However, Dr. C.M.Q.’s report has triggered VA’s duty to assist. On remand, the AOJ should secure adequate medical opinions addressing the whether there is an etiological relationship between the claimed disabilities and the Veteran’s military service. 14. Entitlement to a TDIU prior to the Veteran’s death is remanded. Action on this claim is deferred pending completion of the development of the issues on appeal. 15. Entitlement to DIC is remanded. The appellant filed a claim for accrued benefits within one year of the Veteran’s death. See May 2017 VA Form 21P-530. However, as noted above, the appellant did not file a claim for DIC on VA Form 21-534. While VA regulations require an appellant to use the form prescribed by the Secretary to claim a benefit, the Board observes that the law contemplates payment of benefits to a surviving spouse who has not filed a formal claim under certain circumstances (specifically, if the Secretary of the VA determines that the record contains sufficient evidence to establish the entitlement of the survivor to such benefits). See 38 U.S.C. § 5101(a)(1)(B)(i); see also Merritt v. Wilkie, 965 F.3d 1357, 1362 (Fed. Cir. 2020) (acknowledging that Congress enacted § 5101(a)(1)(B) as an informal claim process permitting an award of benefits based on evidence in the record). Thus, an award of DIC is not barred by a matter of law because an appellant has not submitted a VA Form 21-534. Here, the appellant has explicitly raised the issue of DIC in her Notice of Disagreement (NOD) and substantive appeal. See November 2018 NOD; January 2019 VA Form 9. While the October 2018 rating decision did not explicitly address entitlement to DIC, that decision explained that it was adjudicating all the claims that it inferred to be raised by the record. See November 2018 Notification Letter. The Board finds that the appellant has filed a valid NOD as to the October 2018 rating decision’s refusal to adjudicate the issue of entitlement to DIC and reiterated that she wishes to perfect an appeal as to this issue notwithstanding that the issue was not included in the January 2019 SOC. Accordingly, on appeal, an SOC should be issued that addresses entitlement to DIC. See Manlincon v. West, 12 Vet. App. 238 (1999) (explaining that remand is the appropriate response where the appellant’s NOD raises an issue that is not included in the SOC). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete VA treatment records. 2. Obtain all outstanding relevant private treatment records, to include records identified on the VA Form 21-4142 submitted by the Veteran in April 2003. 3. Obtain the Veteran’s complete service medical records, to include any National Guard records. 4. Obtain the Veteran’s service personnel records, to include any available National Guard records. 5. After completing #1, #2, #3, and #4, refer the claims file to an examiner for preparation of a medical opinion. The examiner should review the claims file and address the following: Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s DM and diabetic complications had its onset in or is otherwise etiologically related to the Veteran’s military service. In addressing these questions, the examiner’s attention is invited to the April 2003 VA examination report showing the Veteran’s report of having had diabetes for 28 years. The examiner should accept as true the Veteran’s reports prior to his death of cold exposure in service and long periods of time in service without eating or drinking properly and his belief that his symptoms began from that moment. See February 2017 VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Assault). The examiner should discuss the Veteran’s service treatment records (STRs) showing admission to a hospital related to rubella. See January 4, 1960 STR. The examiner should also discuss the October 2016 Dr. C.M.Q. report opining that the Veteran’s DM and diabetic complications are most likely secondary to military service. See November 2016 Medical Treatment Record. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After completing #1, #2, #3, and #4, refer the claims file to an examiner for preparation of a medical opinion. The examiner should review the claims file and address the following: (a) Please diagnose all prostate disorders present in 2016 and 2017 prior to the Veteran’s death. (b) For each disorder diagnosed in subpart (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that the such disorder had its onset in or is otherwise etiologically related to the Veteran’s military service. The examiner should accept as true the Veteran’s reports of cold exposure in service and long periods of time in service without eating or drinking properly and his belief that his symptoms began from that moment. See February 2017 VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Assault). The examiner should also discuss the October 2016 Dr. C.M.Q. report opining that the Veteran’s prostate disorder is most likely secondary to military service. See November 2016 Medical Treatment Record. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 7. After completing #1, #2, #3, and #4, refer the claims file to an examiner for preparation of a medical opinion. The examiner should review the claims file and address the following: (a) Please diagnose all cardiac disorders present in 2016 and 2017 prior to the Veteran’s death. (b) For each disorder diagnosed in subpart (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that the such disorder had its onset in or is otherwise etiologically related to the Veteran’s military service. The examiner should discuss the October 2016 Dr. C.M.Q. report opining that the Veteran’s heart disorder is most likely secondary to military service. See November 2016 Medical Treatment Record. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 8. After completing #1, #2, #3, and #4, refer the claims file to an examiner for preparation of a medical opinion. The examiner should review the claims file and address the following: Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset in or is otherwise etiologically related to the Veteran’s military service. The examiner should discuss the October 2016 Dr. C.M.Q. report opining that the Veteran’s hypertension is most likely secondary to military service. See November 2016 Medical Treatment Record. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 9. After completing #1, #2, #3, and #4, refer the claims file to an examiner for preparation of a medical opinion. The examiner should review the claims file and address the following: Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed pulmonary embolism had its onset in or is otherwise etiologically related to the Veteran’s military service. The examiner should accept as true the Veteran’s reports of cold exposure in service and long periods of time in service without eating or drinking properly and his belief that his symptoms began from that moment. See February 2017 VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Assault). The examiner should also discuss the October 2016 Dr. C.M.Q. report opining that the Veteran’s prostate disorder is most likely secondary to military service. See November 2016 Medical Treatment Record. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 10. After completing #1, #2, #3, and #4, refer the claims file to an examiner for preparation of a medical opinion. The examiner should review the claims file and address the following: (a) Please diagnose any acquired psychiatric disorder(s) present in 2016 and 2017 prior to the Veteran’s death. (b) For each disorder diagnosed in subpart (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that the such disorder had its onset in or is otherwise etiologically related to the Veteran’s military service. The examiner’s attention is invited to the April 2003 VA examination report showing present complaints including anxiety, restlessness, depression, nervousness, and insomnia. The examiner should discuss the Veteran’s report that he became depressed during his military service following his brother’s suicide and that this depression and anxiety, accompanied by recurrent suicidal ideation, continued throughout his life. See February 2017 VA Form 21-0781a (Statement in Support of Claim for PTSD due to Assault). The examiner should also discuss the October 2016 Dr. C.M.Q. report opining that the Veteran had anxiety, depression and memory disorders that were most likely secondary to military service. See November 2016 Medical Treatment Record. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 11. Separately, issue an SOC addressing entitlement to DIC. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.