Citation Nr: 21005942 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-51 501 DATE: February 2, 2021 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim of service connection for diabetes mellitus, type II, and the appeal is granted to this extent only. New and material evidence has been received sufficient to reopen a previously denied and final claim of service connection for coronary artery disease (CAD) (also claimed as ischemic heart disease) and the appeal is granted to this extent only. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for CAD (also claimed as ischemic heart disease) is remanded. FINDINGS OF FACT 1. A March 2015 rating decision denied service connection for diabetes mellitus, type II and CAD (also claimed as ischemic heart disease), the Veteran received notice of the decision and he did not file a timely appeal. 2. Evidence received since the March 2015 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claims and it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The March 2015 denial of the claims for service connection for diabetes mellitus, type II and CAD (also claimed as ischemic heart disease) is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2019). 2. New and material evidence has been received to reopen the previously denied and final claims of service connection for diabetes mellitus, type II and CAD (claimed as ischemic heart disease). 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from November 1965 to December 1968, during part of which he was deployed to the Kingdom of Thailand. 1. Whether new and material evidence has been received sufficient to reopen a claim for diabetes mellitus, type II. 2. Whether new and material evidence has been received sufficient to reopen a claim for CAD (also claimed as ischemic heart disease). In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Board first notes in its review of the record a final decision denying the claim for diabetes mellitus, type II was in May 2010. A notification letter for the denial was sent to the Veteran one day later in May 2010. The Veteran did not appeal the decision within one year of the date of the notification letter as required by regulation and the decision became final. However, the March 2015 rating decision stated that the claim was now considered reopened and proceeded to deny it, as well as the claim for CAD (claimed as ischemic heart disease). Consequently, the March 2015 rating decision is the last final decision denying those claims. A notification letter of the denial was sent to the Veteran two days later in March 2015. However, once again the Veteran did not appeal the decision within one year of the date of the notification letter as required by regulation and that decision, too, became final. A January 2019 rating decision denied the claims for lack of new and material evidence to reopen the claims. However, the February 2020 Statement of the Case (SOC) discussed the merits of the claims in detail and at some length, thereby, in effect, reopening the claims. Regardless of a decision by the Agency of Original Jurisdiction (AOJ) to reopen, as in the March 2015 rating decision reopening the claim for diabetes mellitus, type II, or, as in February 2020 SOC, effectively reopening by addressing the merits of both claims, the Board must make its own determination, as this in turn establishes the Board’s jurisdiction to reach the underlying claims and to adjudicate them de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). On this basis and looking to the May 2010 and March 2015 rating decisions and notification letters, new and material evidence would consist of medical evidence showing treatment and diagnoses during service of the claimed disorders claimed during service, the diseases developing to a compensable degree within the specified time period or sufficient evidence demonstrating tactical herbicide exposure based solely on service in Thailand. Since the March 2015 rating decision, as the last final decision, the record now includes an October 2015 Statement in Support of Claim by the Veteran addressing his posting in Thailand and his duties at U-Tapao Royal Thai Air Base, December 2019 and April 2020 appellate briefs submitted on the Veteran’s behalf discussing details of the Veteran’s duties and arguing that his duties and social interactions put him in close proximity to the periphery fencing of the base and two articles associated with the claims file on April 2020, the first addressing Royal Thai air bases and exposure to Agent Orange and the second on U-Tapao Royal Thai Air Base, in particular. The Board finds this evidence was not of record at the time of the March 2015 final rating decision and is therefore new. Moreover, it is material, as it provides information possibly supporting the Veteran’s assertions and thereby presents a reasonable possibility of substantiating the claims. The evidence is neither cumulative nor redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran’s claims will turn. For these reasons, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In its September 2019 decision, the Board denied the claims for service connection for bilateral hearing loss and tinnitus. Upon the Veteran’s appeal to the United States Court of Appeals for Veterans Claims (the Court), the Court in August 2020 vacated those denials and remanded the claims to the Board for action consistent with the Joint Motion for Partial Remand (JMPR), agreed to and submitted by the parties. The parties to the August 2020 JMPR agree that Board inappropriately relied on subsequently developed evidence in its discussion of the medical article submitted by the Veteran, by in turn discussing the findings of a 2005 Institutes of Medicine (IOM) study. That study, relied on by the Board, was not submitted by the Veteran or obtained prior to the issuance of the Statement of the Case (SOC). In such a case, Board must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it. Thurber v. Brown, 5 Vet. App. 119, 126 (1993). The parties therefore agree that remand is warranted for the Board to provide the Veteran the opportunity to respond to this evidence. The Board accordingly will remand this claim for the IOM study to be obtained by the AOJ and associated with the file. This remand in turn will provide the Veteran and his representative with notice of that evidence, of the reliance proposed to be placed on it by the AOJ in its subsequent adjudication of the claim and, upon issuance of a Supplemental Statement of the Case (SSOC), the AOJ will allow an appropriate opportunity for the Veteran and his representative to respond before returning the case to the Board. 2. Entitlement to service connection for tinnitus is remanded. Th parties to the JMPR further agree that, although an October 2015 VA examiner opined that the Veteran’s tinnitus at least as likely than not related to his hearing loss, she also noted in her examination findings that tinnitus “may have occurred during service.” Moreover, in the January 2016 addendum opinion addressing whether hearing loss was the result of military noise exposure, the examiner did not provide an opinion regarding whether tinnitus was incurred in or caused by military service, to include military noise exposure. The parties to the JMPR therefore agree that remand is warranted to obtain a new VA opinion regarding whether the Veteran’s tinnitus is related to his service and military noise exposure. For these reasons, the Board remands this claim. 3. Entitlement to service connection for diabetes mellitus, type II, is remanded. 4. Entitlement to service connection for coronary artery disease (CAD) (also claimed as ischemic heart disease) is remanded. The record shows the Veteran underwent one VA examination for diabetes mellitus in April 2014. Although the Veteran received a diagnosis of diabetes mellitus, type II, the VA examiner did not render an opinion on service connection. As the Veteran has been diagnosed, is routinely tested for A1C and microalbumin levels and regularly takes diabetic medication, the record as it now stands offers insufficient competent medical evidence for a decision on the claim for service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Veteran’s heart disorder has been assessed as atrial dysrhythmia or “flutter” and it consistently appears on problems lists in VA treatment notes, characterized as either coronary artery disease or congestive heart failure. The Veteran has yet to be afforded a VA examination for heart conditions. The Board does not possess the expertise to determine the exact nature of the Veteran’s heart disorder. Without a medical professional’s diagnosis and an opinion for service connection, direct or presumptive, as due to exposure to an herbicide agent, there is once again insufficient competent medical evidence for a decision on this claim. For these reasons, remand of the claims for VA examinations and opinions is necessary. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for bilateral hearing loss, tinnitus, diabetes mellitus, type II, and any heart disorder, to include CAD (also claimed as ischemic heart disease) at any VA facility and by any private treatment provider. The Veteran is also invited to submit any additional evidence he may have concerning duties and exposures he may have experienced in Thailand. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Simultaneous to the above directives, the AOJ is requested to obtain a copy of the 2005 study by the Institutes of Medicine (IOM study), “Noise and Military Service: Implications for Hearing Loss and Tinnitus.” When obtained, associated the IOM study with the claims file. 3. After all additional records pertaining to the Veteran’s several disorders identified in the above first directive have been obtained and associated with the claims file, but whether or not records are obtained, arrange for an examination by VA examiners with an appropriate specialties for producing findings for tinnitus, diabetes mellitus and heart disorders. The complete electronic claims file must be made available to the examiners in conjunction with the examinations. The examiners should detail all findings. If the examiner for TINNITUS determines a new VA examination is necessary, the AOJ is requested to arrange for that examination. After review of the claims file, the examiner for tinnitus is requested to render an opinion addressing the following: Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that tinnitus is caused by an event, injury or illness during active service, to include noise exposure. The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner’s attention is directed to the Correspondence in the claims file appearing at the date, February 14, 2016, comprised of copies of 3 articles addressing delayed onset of noise exposure damage, to include tinnitus, one of which is by Kujawa and Liberman and the two others are by Kaltenbach et al.) and to the Notice of Disagreement (NOD), also at February 14, 2016, to which is appended the Appellate Brief of the Veteran’s representative. The examiner is requested to comment on and assess the articles and the arguments of the Brief and incorporate the examiner’s conclusions into the rationale supporting the opinion. The examiner is further requested to comment in the rationale on all relevant opinions in the record and to acknowledge, address, consider, and discuss all lay statements of the Veteran, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and any lay evidence of other persons, as it pertains to tinnitus. The Board urges the examiner to note that opinions rendered without addressing and discussing any lay evidence of the Veteran and others will be deemed insufficient for the purposes of VA adjudication. 4. The examiner for DIABETES MELLITUS is requested to provide opinions addressing the following: (a) Is a diagnosis of diabetes mellitus type II clinically confirmed by the evidence of record, as opposed to glucose intolerance or pre-diabetes? If so, (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that diabetes mellitus, type II, is DIRECTLY OR SECONDARILY caused by an event, injury or illness during active service, other than exposure to an herbicide agent. The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is further requested to comment in the rationale on all relevant opinions in the record and to acknowledge, address, consider, and discuss all lay statements of the Veteran, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and any lay evidence of other persons, as it pertains to diabetes mellitus, type II. The Board urges the examiner to note that opinions rendered without addressing and discussing any lay evidence of the Veteran and others will be deemed insufficient for the purposes of VA adjudication. The examiner for HEART DISORDERS is first requested to provide a diagnosis and findings as to the particular heart disorder afflicting the Veteran. The examiner is next requested to render opinions addressing the following: (a) Whether the heart pathology present would be medically classified as ischemic heart disease by medical personnel. If so, (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that the Veteran’s heart disorder, to include, if present, CAD (also claimed as ischemic heart disease), is DIRECTLY OR SECONDARILY caused by an event, injury or illness during active service, other than exposure to an herbicide agent. The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is further requested to comment in the rationale on all relevant opinions in the record and to acknowledge, address, consider, and discuss all lay statements of the Veteran, as well as the Veteran’s reports to treatment providers, as they appear throughout the record, and any lay evidence of other persons, as it pertains to a heart disorder. The Board urges the examiner to note that findings or opinions rendered without addressing and discussing any lay evidence of the Veteran and others will be deemed insufficient for the purposes of VA adjudication. 5. After completing the above development and any other indicated development readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.