Citation Nr: 1646069 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 14-28 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ear hearing loss disability, and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinea cruris, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Subsequently, this appeal has been transferred to the RO in Winston-Salem, North Carolina. In February 2013, the Veteran submitted a statement indicating that he had a rash on his face and back due to in-service exposure to Agent Orange. In August 2016, he also submitted a claim for an increased rating for his service-connected posttraumatic stress disorder (PTSD). THESE CLAIMS ARE REFERRED TO THE RO FOR APPROPRIATE ACTION. The Board notes that the RO denied the issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) in a September 2015 rating decision. Thereafter, this issue was erroneously included in a supplemental statement of the case dated in November 2015. In response to that SSOC, in a VA Form 21-4138 received in November 2015, the Veteran expressed disagreement with the RO's denial of the TDIU claim. THIS MATTER IS REFERRED TO THE RO FOR APPROPRIATE ACTION. FINDINGS OF FACT 1. An unappealed December 2006 rating decision denied the Veteran's claims for entitlement to service connection for a left ear hearing loss disability, tinnitus, and tinea cruris. 2. There is evidence associated with the claims file since the December 2006 rating decision that relates to unestablished facts necessary to substantiate the claims for entitlement to service connection for a left ear hearing loss disability, tinnitus, and tinea cruris. 3. A left ear hearing loss disability and tinnitus are related to the Veteran's active service. 4. Tinea cruris was caused by fecal leakage associated with the Veteran's service-connected hemorrhoids. CONCLUSIONS OF LAW 1. The December 2006 rating decision denying the claims of entitlement to service connection for a left ear hearing loss disability, tinnitus, and tinea cruris is a final and binding determination based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.1103 (2015). 2. New and material evidence has been received sufficient to reopen the claims of entitlement to service connection for a left ear hearing loss disability, tinnitus, and tinea cruris. 38 U.S.C.A. §§ 5108 , 7104 (West 2014); 38 C.F.R. §§ 3.156 (a), 20.1100 (2015). 3. The criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 5. The criteria for entitlement to service connection for tinea cruris have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under VA law, service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests an organic disease of the nervous system, such as sensorineural hearing loss or tinnitus, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2015). Pursuant to 38 U.S.C.A. § 7105 (c), a decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[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." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); see Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, 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 (a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the claimant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the United States Court of Appeals for Veterans Claims (Court) indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. A. Left Hearing Loss and Tinnitus The relevant evidence of record at the time of the December 2006 rating decision includes the following: the Veteran's service treatment records (STRs) from August 1967 to August 1970, unremarkable for any complaints, symptoms or diagnosis of any hearing loss or tinnitus; VA medical treatments from August 2005 to May 2006, also unremarkable for any complaints, symptoms or diagnosis of any hearing loss or tinnitus; and an October 2006 VA examination report, showing that the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. This report also contained the examiner's finding that the Veteran's left ear hearing loss disability and tinnitus were caused by noise exposure during service. The RO denied these claims in the December 2006 rating decision concluding that left ear hearing loss and tinnitus were not related to the Veteran's active military service because he had normal hearing acuity at his separation examination. The Veteran did not appeal, and that decision became final based on the evidence of record at that time. 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 20.1103. The Veteran, however, has presented evidence since the December 2006 rating decision that relates to an unestablished fact necessary to substantiate the claims for service connection for left ear hearing loss and tinnitus, evidenced by a private medical opinion from D.R. K.C.L. received by VA in February 2012. In this private medical opinion, Dr. K.C.L. intimated that the Veteran's left ear hearing loss and tinnitus could be related to noise exposure in service. This additionally-submitted evidence is not cumulative or redundant of the evidence previously of record and previously considered in the December 2006 rating decision. Moreover, this additional evidence is sufficient to raise a reasonable possibility of substantiating the claims. Accordingly, reopening of the claims of entitlement to service connection for a left ear hearing loss and tinnitus is warranted. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that his left ear hearing loss disability and tinnitus are related to noise exposure sustained in active service. Specifically, the Veteran stated that he noticed he had tinnitus and some hearing loss after returning from Vietnam. The RO has already conceded the Veteran's noise exposure. A review of the Veteran's STRs is unremarkable for any complaints, symptoms, diagnosis or treatment of a hearing disability or tinnitus. The record, however, shows that the Veteran had VA examinations in October 2006, September 2012 and February 2016 demonstrating that he had left ear sensorineural hearing loss and tinnitus. The October 2006 VA examiner opined that the Veteran's left ear hearing loss and tinnitus were the result of acoustic trauma in service. The September 2012 and January 2016 VA examiners, however, opined that the Veteran's left ear hearing loss disability and tinnitus were not related to his active service. In reaching this conclusion, the VA examiners cited to the Veteran's STRs showing that he did not have any hearing loss or tinnitus during service. While the September 2012 VA examiner did not comment further, the January 2016 VA examiner observed that there was no evidence of a change in hearing or pattern of change that would be consistent with acoustic trauma during service. The January 2016 VA examiner further commented that although noise exposure was conceded and the relationship between noise and hearing loss is well documented in research, there must ultimately be a nexus of auditory damage to link current hearing loss to active duty. The January 2016 VA examiner concluded that the evidence did not support a nexus in this case. In addition, the Veteran submitted a private medical opinion from Dr. K.C.L. received by VA in February 2013. She stated that the Veteran's active duty included the firing of small arms and conduction demolitions without hearing protection. Dr. K.C.L. noted the Veteran's statement that he had bilateral consistent tinnitus. She also diagnosed the Veteran with mild to moderate sensorineural hearing loss for the left ear. Dr. K.C.L. opined that the Veteran's bilateral sensorineural hearing loss could be related to this past reported noise exposure. In any event, she concluded that the high frequency 4k notch configuration of his hearing loss in the left ear was indicative of noise exposure. Consequently, there is disagreement amongst those who have commented concerning whether the Veteran's left ear hearing loss and tinnitus are related to his noise exposure in service. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, however, nor is "definite" or "obvious" etiology; instead, this posited correlation need only be an "as likely as not" possibility. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The VA examiners and Dr. K.C.L. are competent medical authorities who had access to the pertinent facts at issue in this case, that is, the Veteran's history of left ear hearing loss and tinnitus. The October 2006 VA examiner attributed the Veteran's left ear hearing loss and tinnitus to noise exposure during service. Even though Dr. K.C.L.'s opinion was ambiguous regarding whether the Veteran's bilateral hearing loss was related to his active service, she, nevertheless stated that the Veteran's left ear hearing loss was indicative of noise exposure. On the other hand, the September 2012 and January 2016 VA examiners opined that the left ear hearing loss and tinnitus were not related to service because there was no evidence of these disabilities during service. To reiterate, VA laws and regulations do not strictly require in-service complaint of, treatment for or diagnosis of hearing loss in order to establish entitlement to service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Furthermore, in establishing entitlement to service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 (2015) have been demonstrated during service, or even in the case of sensorineural hearing loss in particular within the one-year presumptive period following discharge from service (as an organic disease of the nervous system), although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability. If, as here, there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Indeed, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that, where there is no evidence of the Veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in [-] service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service. . . ." Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Thus, service connection for hearing loss may be granted when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to other ("intercurrent") causes. Id.; 38 C.F.R. § 3.303(d). In sum, the Board finds that the evidence of record is in relative equipoise. And, resolving doubt in favor of the Veteran, the Board finds that service connection for a left ear hearing loss disability and tinnitus is warranted. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2015). B. Tinea Cruris The relevant evidence of record at the time of the December 2006 rating decision includes the following: the Veteran's service treatment records (STRs) from August 1967 to August 1970, showing treatment for a rash over his legs, head, underarm and crotch in May 1968; VA medical treatments from August 2005 to May 2006, showing a diagnosis of tinea cruris; and a November 2006 VA examination report, showing that the Veteran was diagnosed tinea cruris without evidence of activity of the time of examination. The RO denied this claim in the December 2006 rating decision concluding that tinea cruris was not related to the Veteran's service-connected hemorrhoids or otherwise related to active military. The Veteran did not appeal, and that decision became final based on the evidence of record at that time. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Since the December 2006 rating decision, the evidence consists of the following: VA and private medical treatment records, showing a diagnosis of tinea cruris; statements from the Veteran that his skin condition was related to his service-connected impaired rectal sphincter and/or exposure to herbicides, including Agent Orange; a September 2012 VA examination report, reflecting a diagnosis of tinea cruris, but the examiner opined that it was less likely than not that it was incurred or caused by his active service; a June 2014 statement from a VA nurse practitioner stating that the Veteran had an ongoing issue with fecal incontinence which leads to moisture in the perianal area and can lead to fungal infections; and a January 2016 VA examination, showing a diagnosis of rash/dermatitis, but not tinea cruris, which the examiner opined was secondary to the Veteran's service-connected impaired rectal sphincter. The June 2014 opinion from the VA nurse practitioner is not cumulative or redundant of the evidence previously of record and previously considered in the December 2006 rating decision. Moreover, this additional evidence is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for tinea cruris is warranted. The Board notes that the Veteran was granted service connection for dermatitis secondary to the service-connected impaired rectal sphincter. There are medical opinions of record indicating that the Veteran's tinea cruris is not related to his military service. However, in light of the Veteran's competent and credible statements that he has had a skin condition of his groin since active service, as well as the June 2014 medical opinion from the VA nurse practitioner stating that his ongoing fecal incontinence (which was shown to be present as early as November 2006 and has been associated with his service-connected hemorrhoids) leads to moisture in the perianal area and can lead to fungal infections, the Board finds that the evidence of record is in relative equipoise. And, resolving doubt in favor of the Veteran, the Board finds that service connection for tinea cruris as secondary to service-connected disability is warranted. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). ORDER Entitlement to service connection for a left ear hearing disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinea cruris, as secondary to service-connected disability, is granted. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs