Citation Nr: 0813436 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-02 397 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for left inguinal hernia residuals. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for a deviated nasal septum. 3. Entitlement to service connection for claimed left inguinal hernia residuals. 4. Entitlement to service connection for a claimed deviated nasal septum. 5. Entitlement to service connection for claimed bilateral hearing loss. 6. Entitlement to service connection for claimed tinnitus. 7. Entitlement to service connection for claimed basal cell carcinoma. 8. Entitlement to service connection for claimed post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004, March 2005 and June 2007 rating decisions issued by the RO. The veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in March 2008. Pursuant to a March 2008 motion and the Board's granting thereof, this case has been advanced on the Board's docket under 38 U.S.C.A. § 7107 (West 2002 & Supp. 2007); 38 C.F.R. § 20.900(c) (2007). The veteran's claims of service connection for left inguinal hernia residuals and a deviated nasal septum were the subject of previous decisions. The Board has a legal duty to address the "new and material evidence" requirement under 38 C.F.R. § 3.156(a) regardless of the actions of the RO. If the Board finds that new and material evidence has been submitted, it is bound by a statutory mandate to consider the merits of the case. Barnett v. Brown, 8 Vet.App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The claims of service connection for bilateral hearing loss, tinnitus, basal cell carcinoma, and PTSD are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The additional evidence added to the record since the October 1998 rating decision is more than cumulative in nature and does raise a reasonable possibility of substantiating the veteran's claims of service connection for left inguinal hernia residuals and a deviated nasal septum. 2. The currently demonstrated residuals of a left inguinal hernia and residuals of a deviated nasal septum are shown as likely as not have been first clinically symptomatic so as to require surgery during the veteran's service in World War II. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the claims of service connection for left inguinal hernia residuals and the residuals of a deviated nasal septum. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 2. By extending the benefit of the doubt to the veteran, his disability manifested by left inguinal hernia residuals and the residuals of a deviated nasal septum is due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 5107, 7104 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. This change in the law is applicable to all claims filed on or after the date of enactment of VCAA, or filed before the date of enactment and not yet final as of that date. Given that the action taken herein below is favorable to the veteran, no further assistance in developing the facts pertinent to this limited matter is required at this time. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the veteran's claim was received subsequent to August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." In this case, the veteran's original claims of service connection for left inguinal hernia residuals and a deviated nasal septum were denied in a rating decision by the RO in March 1946. The veteran applied to reopen the claim in June 1998. In an October 1998 rating decision, the RO determined that while the veteran had submitted new evidence, it was not material in showing that the left inguinal hernia residuals and deviated nasal septum were aggravated as a result of the veteran's service. In this regard, the RO determined that the left inguinal hernia residuals and deviated nasal septum conditions preexisted service but the evidence of record did not show aggravation of the conditions during service. However, since the October 1998 decision is final under 38 U.S.C.A. § 7104(a), the Board must first ascertain whether new and material evidence has been received to reopen the claims. Since that decision, the veteran has submitted a transcript of his Board hearing before the undersigned VLJ. During the hearing, the veteran testified that he had surgery for his deviated septum and inguinal hernia in January 1943. Since the surgery, he reported having had quite a bit of sinus drainage and a couple of sinus infections. He did not have these problems prior to the surgery for the deviated nasal septum in January 1943. With regard to the inguinal hernia, the veteran testified that, since the surgery, he could feel a mass when he touched a certain spot and this caused a terrible pain, described as a shooting pain. This mass was not palpable prior to the surgery in service in January 1943. This additional evidence of record in this case is new and does raise a reasonable possibility of substantiating the veteran's claims of service connection, in the Board's opinion. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claims of service connection for left inguinal hernia residuals and the residuals of a deviated nasal septum. In Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit held that to rebut the presumption of soundness, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but that the disorder did not undergo aggravation in or as a result of service. In this regard, the Board notes that in the July 1942 entrance examination the veteran had no noted nose abnormalities. He did have documented dilated inguinal rings bilaterally. The examiner noted that there was no evidence of hernia. The remaining service records document treatment for inguinal hernia and deviated nasal septum. These records report that the conditions existed prior to service (EPTS). Subsequent to service, private treatment records dated July 1987 to January 1998 document the history of treatment for these conditions. In an August 1998 VA examination, the veteran was diagnosed with status post left inguinal hernia repair while in service with chronic pain syndrome, intermittent pain syndrome and painful nodule to the left scrotal sac. The veteran was also diagnosed with status post rhinoplasty with intermittent narrowing of the nares and difficulty breathing and rhinorrhea. The x-ray reports showed suspicious very little mucosal thickening of the maxillary antra, suspicious for chronic sinusitis. There was also very little nasal septal deviation to the left. Thus, the Board finds the evidentiary record to be in relative equipoise in showing that left inguinal hernia and the deviated nasal septum as likely as not were first clinically manifested and symptomatic during service. With application of the statutory presumption of soundness at entry into service, service connection for the residuals of a left inquinal hernia and the residuals of a deviated nasal septum is warranted. ORDER As new and material evidence has been submitted to reopen the claims of service connection for left inguinal hernia residuals and the residuals of a deviated nasal septum, the appeal to this extent is allowed. Service connection for the residuals of left inguinal hernia and is granted. Service connection for the residuals of a deviated nasal septum is granted. REMAND As to the veteran's claim for service connection for bilateral hearing loss and tinnitus, the Board observes that, during his March 2008 Board hearing, the veteran testified that he was exposed to aircraft engine noise without the benefit of hearing protection during his military service. The veteran testified that his quarters were approximately 200 to 300 feet from the airstrip. He reported that there were roughly 100 take-offs and landings per day at the airstrip. He testified that after his military service he worked in the steel industry at a refuse plant. He testified that he ran heavy equipment and worked on belt lines. He testified that he was not exposed to noise from blasting or jackhammer use. He opined that his service noise exposure was louder, more intense, and more frequent than his post service noise exposure in the steel industry. Additionally he indicated that he had received treatment in a private facility, Beltone, for his hearing disabilities. The Board notes that VA regulations provide that VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. See 38 C.F.R. § 3.159(c)(1). Thus the Board finds that the veteran should be given the opportunity to submit the information necessary to allow the VA to obtain these private treatment records for his hearing disabilities. With regards to his claims of service connection for basal cell carcinoma and PTSD, the Board notes that the veteran had expressed timely disagreement with a June 2007 rating decision denying service connection for basal cell carcinoma and PTSD. To date, however, no Statement of the Case has been issued regarding these issues. It remains incumbent upon the RO to issue a Statement of the Case addressing these particular issues, and, as indicated in Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), these matters must be addressed on remand. See also 38 C.F.R. § 19.26 (2007). The Board observes that a May 1943 service record indicates that the veteran suffered 1st and 2nd degree sun burn while sun bathing. The record indicates the sun burn had healed. Subsequent to service, private records, dated March to July 2005, document the treatment the veteran received for his basal cell carcinoma. During his March 2008 Board hearing, the veteran testified, generally, concerning his sun exposure while stationed in Guam during his military service. Finally, the Board notes that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2006). In May 2005, the veteran was seen at the Princeton Vet Center for treatment for his PTSD. The veteran exhibited such PTSD symptoms as anxiety, depression, flashbacks and intrusive thoughts related to his experiences in service during World War II (WW II). The veteran described a life of isolation, avoidance, mistrust, suspiciousness and poor memory and concentration. He reportedly had difficulty controlling his anger outbursts and they often manifested as aggressive and threatening behavior directed toward those around him. He experienced flashbacks and recollections of trauma experienced during the war almost daily. He reported fragmented sleep patterns and occasional nightmares. He felt angry, anxious and depressed when reminded of events from the war and did not watch television programs or movies about the war. He had difficulty maintaining effective social relationships and avoided most places where there were crowds. He was only close to immediate family members and preferred to just be alone. Even though he had been married for the past 47 years, he reported marital conflict and he and his wife were reportedly living separately. Eye contact was fair. His affect was blunted and his mood was often reserved. The examiner noted that the veteran's hyperarousal symptoms, irritability, concentration and memory problems, and hypervigilance were all considered severe. The veteran was diagnosed with PTSD, delayed onset, described as moderate in nature. The veteran also submitted a stressor statement reporting the stressful events of his service during WW II. The veteran's reported stressful events included receiving incoming fire from enemy soldiers who would not surrender, witnessing 2 bomber planes crash land on the airstrip in Guam, going through a typhoon in route from Hawaii to Guam and witnessing a fellow soldier get hit by sniper fire. Despite the noted medical evidence and March 2008 testimony, the RO has not afforded the veteran a VA examination, with opinions as to the etiology of his claimed disorders. Such opinions are "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, indication the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. The Court further held that types of evidence that "indicate" a current disability may be associated with service include medical evidence that suggest a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Given the evidence of record, the veteran should be afforded a VA examination, with opinions as to the etiology of his claimed disorders as is "necessary" under 38 U.S.C.A. § 5103A(d). Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. A letter should be sent to the veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2007), the need for additional evidence regarding his claims. The letter must inform the veteran about the information and evidence that is necessary to substantiate the claim, notify him of the type of evidence that VA will seek to provide, inform him of the type of evidence that he is expected to provide, and request that he provide any and all relevant evidence currently in his possession. The veteran should also be notified that, in cases where service connection is granted, both a disability evaluation and an effective date for that evaluation will be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should take appropriate steps to contact the veteran in order to have him provide information referable to all treatment received for the claimed disabilities since service. Based on the response, the RO should undertake all indicated action to obtain copies of all clinical records from any previously un- identified treatment source. The veteran should also be informed that he can submit evidence to support his claims. 3. Then, the veteran should be afforded appropriate VA examinations to determine the nature, extent and likely etiology of the claimed bilateral hearing loss, tinnitus and basal cell carcinoma. The veteran's claims folders, to include a copy of this REMAND, must be made available to and reviewed by the examiner(s). A notation to the effect that this record review took place should be included in the report of the examiner(s). Any indicated studies should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner must opine as to whether the veteran has a disability manifested by current a bilateral hearing loss, tinnitus, or basal cell carcinoma that at least as likely as not (e.g., a 50 percent or greater likelihood) are due to an event or incident during his period of active service. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 4. Then, the veteran should be afforded a VA psychiatric examination. The claims file, a separate copy of this remand, and a list of the in-service stressor(s), if any, found by the RO to be corroborated by the evidence, must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. The examiner must determine whether the veteran meets the criteria for a diagnosis of PTSD and, if so, should identify any in-service stressor(s) found to support that diagnosis. 5. The RO must take appropriate steps to issue a Statement of the Case concerning the issues of entitlement to service connection for claimed basal cell carcinoma and claimed PTSD. All indicated development should be taken in this regard. The veteran should, of course, be advised of the time period within which to perfect his appeal. 38 C.F.R. § 20.302(b) (2007). 6. After completion of all the above development, all of the veteran's claims should be readjudicated. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs