Citation Nr: 0002117 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-16 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been presented to reopen a claim for service connection for scars of the lungs and heart. 3. Entitlement to service connection for acute/subacute peripheral neuropathy as a result of exposure to Agent Orange. 4. Entitlement to service connection for low resistance to disease (cold, fevers, etc.). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had active service from February 1963 to February 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision, in which the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA) denied claims for service connection acute/subacute peripheral neuropathy as a result of exposure to Agent Orange, service connection for low resistance to disease and entitlement to a 10 percent rating for multiple non- compensable service connected disabilities. The RO also declined to reopen previously denied claims for service connection for hearing loss, scars on the heart and lungs, and a respiratory condition. In September 1998, the appellant filed a notice of disagreement limited to his claims involving the heart, lungs and ears. See 38 C.F.R. § 20.201 (1999). In a subsequent letter, the appellant's representative filed a notice of disagreement on the issues of service connection for peripheral neuropathy and low resistance to disease. A timely substantive appeal was filed on these issues in November 1998. The Board notes that the appellant submitted additional evidence directly to the Board in September 1999. Upon review of this evidence, the Board finds that the newly submitted records are duplicative of the evidence addressed by the RO in an April 1999 Supplemental Statement of the Case. Accordingly, the newly submitted documents are not of such materiality as to require an additional Supplemental Statement of the Case from the RO. See 38 C.F.R. § 19.31 (1999). FINDINGS OF FACT 1. In a decision issued in June 1995, the RO denied the appellant's claim for service connection for hearing loss on the basis that there was no competent evidence establishing the existence of a hearing loss disability. The appellant failed to appeal the claim within one year of notice of the denial. 2. Additional evidence since the RO's June 1995 final decision which denied service connection for hearing loss is not material. 3. In a decision issued in June 1995, the RO denied the appellant's claim for service connection for scars of the lungs and heart on the basis that there was no competent evidence establishing the existence of the claimed conditions. The appellant failed to appeal the claim within one year of notice of the denial. 4. Additional evidence since the RO's June 1995 final decision which denied service connection for scars of the lungs and heart is not material. 5. There is no competent medical evidence of record that the appellant manifests acute or subacute peripheral neuropathy. 6. There is no competent medical evidence of record that the appellant manifests a current disability of low resistance to disease and/or an immunological disorder. CONCLUSIONS OF LAW 1. The RO's June 1995 rating decision wherein service connection for hearing loss was denied is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (1999). 2. The evidence received subsequent to the RO's June 1995 rating decision wherein service connection for hearing loss was denied is insufficient to reopen the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The RO's June 1995 rating decision wherein service connection for of the lungs and heart was denied is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (1999). 4. The evidence received subsequent to the RO's June 1995 rating decision wherein service connection for scars of the lungs and heart was denied is insufficient to reopen the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 5. The claim for service connection for acute/subacute peripheral neuropathy due to exposure to Agent Orange is not well grounded, and there is no further duty to assist the appellant in completing the application of his claim. 38 U.S.C.A. § 5107(a) (West 1991). 6. The claim for service connection for low resistance to disease is not well grounded, and there is no further duty to assist the appellant in completing the application of his claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and material - hearing loss The appellant contends that he has a bilateral hearing loss disability which stems from his in-service exposure to acoustic trauma. In this respect, he indicates that he was exposed to loud noises while performing his duties of driving trucks and refueling planes. In June 1995, the RO issued a rating decision denying a claim for service connection for hearing loss. (There had been a prior final rating decision in September 1994 that also denied service connection for hearing loss.) The appellant was notified of this decision and his appellate rights by means of an RO letter dated in June 1995, but he failed to appeal within one- year appeal period. 38 C.F.R. § 20.302 (a) (1999) (a Notice of Disagreement (NOD) must be filed with the agency of original jurisdiction within one year from the date that the agency mailed notice of the adverse decision). An unappealed determination of the agency of original jurisdiction is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (1999). As to the reopening of claims, the Board must make an independent review of the RO's determination. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the RO's September 1994 rating decision denying service connection for hearing loss became final. Accordingly, the Board will apply the new and material standard with respect to the adjudication of this claim. As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). However, if the claimant can thereafter present new and material evidence of the previously disallowed claim, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108 (West 1991). The U.S. Court of Appeals for Veterans Claims has outlined a three- step process for the reopening of claims. See Elkins v. West, 10 Vet.App. 209 (1999) (en banc); Winters v. West, 10 Vet.App. 203 (1999) (en banc). First, it must be determined whether the appellant has submitted new and material evidence in support of reopening the claim. Winters, 10 Vet.App. at 206. Evidence is new when it is not merely cumulative or redundant of other evidence previously of record. Material evidence is evidence which bears directly and substantially upon the specific issue at hand, and which by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); see also Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). Evidence is presumed credible for the purposes of reopening unless it is inherently false or untrue. Duran v. Brown, 7 Vet.App. 216, 220 (1994); Justus v. Principi, 3 Vet.App. 510, 513 (1992). The evidence relied upon in reopening the claim must be both new and material, and the failure to satisfy either prong ends the inquiry and requires that the claim be denied. Smith v. West, 12 Vet.App. 312 (1999). If new and material evidence has been presented, immediately upon reopening it must be determined whether, based upon all the evidence of record in support of the claim, the claim as reopened is well grounded. Winters, 10 Vet.App. at 206. For purposes of a well groundedness analysis, the credibility of the evidence is presumed. Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995). A well grounded claim for service connection requires evidence of 1) a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and 3) a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet.App. 465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). For VA purposes, 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (1999). Finally, if a well grounded claim has been submitted, then the claim must be evaluated on the merits, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters, 10 Vet.App. at 206; see also Epps v. Brown, 126 F.3d 1464 (Fed.Cir. 1997); cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). Determining what the "issue at hand" is for the purposes of reopening a finally denied claim depends on what evidence was before the adjudicator when the final decision was made and the reasons that were given for the denial of the claim. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). In the September 1994 rating decision, the RO denied the appellant's claim on the basis that "there [wa]s no audiometric exam showing that a hearing loss exists." Therefore, the issue currently before the Board is whether the additional evidence submitted by the appellant since the RO's decision in 1995 is both new and material in that tends to establish the existence of a current hearing loss disability. At the time of the June 1995 denial, the RO reviewed service medical records which failed to show auditory threshold in any of the frequency exceeding 26 decibels or greater. The appellant's discharge examination, dated in February 1967, revealed auditory thresholds of 15 decibels bilaterally to whispered voice. Post service, neither private nor VA clinical records revealed auditory thresholds in any frequency exceeding 40 decibels, auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at 26 decibels or greater; or speech recognition scores, using the Maryland CNC Test, less than 94 percent. Of note, a February 1993 VA audio examination showed right ear pure tone thresholds of 10, 5, 10, 25 and 25 decibels, and left ear pure tone thresholds of 5, 5, 10, 25 and 35, respectively. Speech recognition using the Maryland CNC word list was 98% for the right ear and 96% for the left ear. The evidence submitted since the RO's June 1995 rating decision includes medical records from VA, City of Memphis Hospitals, John Gaston Hospital, Dr. Sydnor, and St. Joseph's Hospital. Nowhere in these records are there seen any audiological examinations showing auditory thresholds of 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, or auditory thresholds of 26 decibels or greater for at least three of those frequencies, or speech recognition scores less than 94 percent. Accordingly, the Board must conclude that, in the absence medical evidence showing a current hearing loss disability as defined by VA, the additional evidence submitted by the appellant does not constitute "material" evidence. Therefore, the claim is not reopened and must be denied. Smith, 12 Vet.App. 312 (1999). II. New and material - scars of the lungs and heart In a Form 21- 4138 filing dated in March 1995, the appellant filed a claim for service connection for "scars on heart and lungs - contaminated [sic] disease." The RO, in a June 1995 rating decision, denied this claim on the basis that there was no medical evidence of the claimed conditions. The RO notified the appellant of his appellate rights by letter dated in June 1995, but the appellant failed appeal within one- year appeal period. 38 C.F.R. § 20.302 (a) (1999). That decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (1999). Accordingly, the issue on appeal is whether new and material evidence has been presented or secured showing the current manifestation of scars on the heart and lungs. Barnett, 83 F.3d 1380 (Fed. Cir. 1996). At the time of the June 1995 denial, the RO reviewed service medical records which were negative for complaint, manifestation, treatment, or diagnosis of scars and/or contamination of the heart and lungs. In this respect, chest- x- ray examinations conducted in May 1962, December 1962, February 1963 and February 1967 were reported as negative. A Grade II pulmonic functional systolic cardiac murmur which was not considered disabling was noted during basic training but, otherwise, he was given "normal" clinical evaluations of the lungs and heart throughout service. Post- service, medical records from VA, the Eastwood Hospital, the Memphis Mental Health Institute, the University of Tennessee Hospital, the Wellington Clinic and the Regional Medical Center at Memphis revealed treatment for various disorders, to include hypertension, atypical chest pain and allergic rhinitis. These records, however, were also negative for complaint, manifestation, treatment, or diagnosis of scars and/or contamination of the heart and lungs. A VA general medical examination, dated in February 1993, was not completed due to the appellant's unwillingness to cooperate. In connection with the current appeal, the appellant has submitted his recent VA clinical records as well as medical records from John Gaston Hospital, Dr. Sydnor, and St. Joseph's Hospital. These records, some of which date back to 1970, are negative for complaint, manifestation, treatment, or diagnosis of scars and/or contamination of the heart and lungs. As such, the additional evidence submitted by the appellant does not constitute "material" evidence and the claim, therefore, is not reopened. Smith, 12 Vet.App. 312 (1999). III. Service connection - acute/subacute peripheral neuropathy The appellant claims that he manifests peripheral neuropathy as a result of his claimed exposure to Agent Orange during service. In making a claim for service connection, he has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveitt v. Brown, 5 Vet.App. 91 (1993). For some factual issues, competent lay evidence may be sufficient; however, where the claim involves issues of medical fact, such as medical causation or diagnosis, competent medical evidence is required. Id. As indicated above, a well grounded claim for service connection requires evidence of 1) a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and 3) a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 C.F.R. § 3.303 (1999). For certain enumerated diseases, service connection may also be granted on a presumptive basis. See 38 C.F.R. §§ 3.307 and 3.309 (1999). VA regulatory provisions pertaining to Agent Orange presumptive diseases define "acute and subacute peripheral neuropathy" as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset." 38 C.F.R. § 3.309(e), Note 2 (1999). Additionally, peripheral neuropathy must manifest itself to a degree of ten percent or more within a year from the appellant's discharge from service. 38 C.F.R. § 3.307 (6)(ii) (1999). The first requirement for a well grounded claim is competent evidence that the appellant has the disability for which he is seeking benefits. Lay assertions of a current disability are not sufficient evidence as lay persons do not have the medical training or expertise to make a diagnosis. Grottveit, 5 Vet.App. at 93. The legal requirement of competent medical evidence of a current disability is significant in this case. The medical records of file, which include service medical records, VA clinical records and private medical records, do not show complaint, manifestation, treatment, or diagnosis of peripheral neuropathy either in service or following service. There is evidence of treatment for complaint of left arm numbness related to atypical chest pain or musculoskeletal origin in 1989, and left upper extremity numbness related to a cervical strain in 1997. However, there is no evidence of diagnosis of acute or subacute peripheral neuropathy. Since there no competent medical evidence of record that the appellant ever manifested acute or subacute peripheral neuropathy, the claim must be denied as not well grounded. See Edenfield v. Brown, 8 Vet.App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). IV. Service connection - low resistance to disease The appellant lastly claims service connection for a disability vaguely referred to as "low resistance level against diseases (colds, fevers, etc.)" which began during active service. According to his statements of record, he was exposed to spinal meningitis and other strange illnesses while stationed in Okinawa. At this time, he developed congestion in his upper respiratory system which was treated with a cough medicine he described as "G.I. GIN." He did not report to sick call due to his fear of being punished. Upon his return to San Diego, California, he would occasionally suffer from vomiting, diarrhea, and nosebleeds episodes which, he believed, were exacerbated by the smog and exposure to jet fuel. He indicated that a subsequent examination at Camp Pendleton had revealed toxic blood levels. Service medical records do show treatment for cold symptoms with enlarged tonsils in 1962, cold symptoms in January 1964, acute urethritis due to gonococcus in February 1964 and flu- like symptoms associated with acute tonsillitis in March 1966. Of note, the RO granted service connection for tonsillitis in a February 1993 rating decision. These records, however, are negative for diagnosis of a depressed or abnormal immunological system. Post- service, medical records from VA, the Regional Medical Center at Memphis, John Gaston Hospital, Dr. Sydnor, St. Joseph's Hospital, the Eastwood Hospital, the Memphis Mental Health Institute, the University of Tennessee Hospital and the Wellington Clinic show treatment for various disorders, to include cold symptoms due to sinusitis, rhinitis, and post- nasal drip. Again, however, there is no competent evidence of record which shows a diagnosis of low level resistance to disease or otherwise indicates disability associated with a depressed or abnormal immunological system. See Brammer v. Derwinski, 3 Vet.App. 223 (1992) (proof of a present disability required for a valid claim). Rather, the only evidence of record suggesting the existence of such a current disability of the immune system consists solely of the appellant's lay statements of record. Certainly, he is deemed competent to describe his symptoms prior to, during, and subsequent to his period of active service. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). However, his lay statements, speaking as they do to questions of medical diagnosis, are insufficient to well ground the claim for service connection. Grottveitt, 5 Vet.App. at 93. Because he has failed to present evidence of a current diagnosis associated with his claimed disorder of low resistance level against diseases, as required by Brammer and Caluza, the claim is not well grounded and must be denied. V. Due Process The United States Court of Appeals for Veterans Claims has recently held that, absent the submission and establishment of a well grounded claim, VA cannot undertake to assist a claimant in developing facts pertinent to his/her claim. Morton v. West, 12 Vet.App. 477, 486 (1999). See Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir. 1997), cert denied, ____ U.S. ____,118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. See Graves v. Brown, 8 Vet.App. 522 (1996). Review of the claims folder on appeal clearly shows that the appellant has been notified of the type of evidence needed to complete his application. In this respect, the RO has issued a Statement of the Case and subsequent Supplemental Statements of the Case which have notified the appellant of the reasons and basis for the denial of his claims. Additionally, the RO has obtained all available private and VA treatment records identified by the appellant. The Board discerns no additional sources of relevant information which may be obtainable concerning the present claim. Accordingly, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See generally Wood v. Derwinski, 1 Vet.App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). ORDER The claim for service connection for bilateral hearing loss is not reopened. The claim for service connection for scars of the lungs and heart is not reopened. Service connection for acute/subacute peripheral neuropathy is denied. Service connection for low resistance to disease is denied. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS Member, Board of Veterans' Appeals