Citation Nr: 1701547 Decision Date: 01/23/17 Archive Date: 02/09/17 DOCKET NO. 15-32 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral eye condition. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for hypertensive vascular disease. 5. Entitlement to service connection for an aneurysm condition. 6. Entitlement to service connection for bladder cancer. 7. Entitlement to service connection for prostate removal. 8. Entitlement to service connection for basal cell carcinoma. 9. Entitlement to service connection for a dental condition. 10. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a dental condition. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1956 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran participated in a video-conference hearing with the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In a November 2004 rating decision, the RO denied entitlement to service connection for a dental condition, and the Veteran did not appeal this decision. 2. Evidence received since the November 2004 rating decision relates to the basis for the prior denial. CONCLUSIONS OF LAW 1. The November 2004 rating decision that denied entitlement to service connection for a dental condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. Evidence received since the November 2004 rating decision with regard to the dental condition is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for a dental condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to re-open his claim for entitlement to service connection for a dental condition, as he has submitted new evidence relevant to his claim. For the following reasons, the Board agrees. Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 38 U.S.C.A. § 5108 presents an exception to this rule, providing that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New and material evidence is evidence not previously submitted to agency decision makers 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low". See Shade v. Shinseki, 24 Vet. Ap. 110, 117 (2010). In November 2004, the Veteran's claim for entitlement to service connection for a residuals of a left ankle injury was denied by the Waco, Texas RO, as there was no evidence the Veteran's dental condition fell under any of the requirements for granting service connection for dental conditions. That decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Later, the Veteran submitted additional evidence relevant to his claim. As this is a threshold jurisdictional question for the Board, the Board must decide the matter on appeal, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). The evidence received since the November 2004 rating decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156. For example, in an October 2016 hearing, the Veteran explained his current dental problems stemmed from inadequate dental treatment he received while in the service. This new evidence clearly addresses the reasons for the previous denial. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. ORDERS The application to reopen the claim of service connection for entitlement to service connection for a dental condition is granted. REMAND The Veteran contends that he is entitled to service connection for a bilateral eye condition, bilateral hearing loss, tinnitus, hypertensive vascular disease, aneurysms, bladder cancer, prostate removal, basal cell carcinoma, and a dental condition. For the following reasons, the Board finds that remands are warranted for all conditions so that the Board may obtain additional medical evidence. At the October 2016 hearing, the Veteran explained that his in-service duties included fixing the light machine guns when they failed to fire automatically. Accordingly, the Veteran spent approximately six to eight hours a day during training camps fixing the light machine guns and thereby received an inordinate amount of exposure to loud noises. In August 2013, the Veteran underwent a Compensation and Pension (C&P) examination for his hearing loss claim in which the examiner determined the Veteran suffered from hearing loss that was not associated with his military service because there was no known scientific evidence linking connecting delayed onset hearing loss with prior noise exposure. The Board finds another examination is in order so that a C&P examiner may reassess the Veteran taking into consideration the latest research concerning delayed onset hearing loss from Dr. Sharon G. Kujawa. At that same hearing, the Veteran explained that he suffered from intermittent tinnitus that he believed started at some point in the early 1960's. At the Veteran's August 2013 C&P examination, the examiner concluded the Veteran did not suffer from tinnitus because the Veteran had stated he was not currently experiencing tinnitus in that moment. The Board finds another examination is in order so that the Veteran can explain to the examiner that he experiences intermittent tinnitus and has been since the early 1960's. As for the Veteran's dental condition, the Veteran explained that he fractured several of his teeth in-service during a boxing contest. The on-duty dentist fixed his teeth but the repairs subsequently caused him to lose all of the injured teeth. To date, the Veteran has not been provided with a C&P examination. Thus, the Board finds the Veteran should be given an appropriate examination. Lastly, the Veteran explained that he was exposed to excessive amounts of tetrachloride, causing his bilateral eye condition, hypertension, aneurysms, bladder cancer, prostate removal, and basal cell carcinoma. While in service, the Veteran printed up forms to distribute to trainees in each company; as part of printing the forms, the Veteran cleaned the machines with tetrachloride by hand without any protection. The Veteran spent about six to nine months touching the tetrachloride and breathing it in without any protection on a daily basis, and he stated that a doctor at the VA advised him that his tetrachloride exposure probably caused his claimed conditions. Despite this, the RO has not yet provided the Veteran with an examination specific to tetrachloride exposure. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with a VA compensation examination to ascertain the etiology of any disability manifested by exposure to tetrachloride, such as a bilateral eye condition, hypertension, aneurysms, bladder cancer, prostate removal, and basal cell carcinoma. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. For each disability currently shown, provide an opinion as to whether it manifested due to tetrachloride exposure or is otherwise related to any incident, event, or injury in service. Reconcile this opinion with all evidence of record. *** The examiner is particularly asked to discuss the Veteran's six to nine months of daily exposure to tetrachloride via touch and air. 2. Provide the Veteran with a VA compensation examination to ascertain the etiology of his currently diagnosed bilateral hearing loss and tinnitus. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner is asked to provide an opinion as to whether the Veteran's hearing loss and tinnitus is related to the Veteran's in-service exposure to firearms. Reconcile this opinion with all evidence of record. ***The examiner is asked particularly to discuss the Veteran's report of his in-service noise exposure, and Dr. Sharon G. Kujawa's research concerning delayed onset hearing loss. 3. Provide the Veteran with a VA compensation examination to determine the etiology of his dental condition. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner is asked to provide an opinion as to whether the Veteran's dental condition is related to the Veteran's in-service teeth fracture and subsequent repair. 4. Then, reajdudicate the remaining claims on appeal. The appellant 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 2014). _________________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).