Citation Nr: 1800326 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-44 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for cancer of the prostate and bones, claimed as secondary to in-service non-ionizing radiation. 6. Entitlement to service connection for residuals of a stroke, to include numbness, claimed as secondary to in-service non-ionizing radiation. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from March 1953 to March 1955. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Offices (RO). The RO certified the issue of entitlement to service connection for bone cancer for appeal. A July 2016 statement of the Veteran reflects that the Veteran is claiming that his prostate cancer is a primary cancer that metastasized to his bones. Therefore, the prostate cancer is part of the claim on appeal and the issues are as stated on the first page of this decision. The Veteran did not submit a VA Form 9, and a July 2016 statement was accepted as a substantive appeal. He did not indicate in his July 2016 statement whether he wanted a Board hearing. In September 2016 report of general information, the Veteran's daughter, speaking on his behalf, indicated that he did not want a Board hearing. The issues of entitlement to service connection for a shoulder disorder and a chronic acquired psychiatric disorder have been raised by the record in a July 2016 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) ( 2012). The Board is reopening the issue of entitlement to service connection for bilateral hearing loss. The issues of entitlement to service connection for bilateral hearing loss, a low back disorder, cancer of the prostate and bones, and residuals of a stroke are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A November 1986 rating decision denied entitlement to service connection for hearing loss. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since November 1986, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The evidence is in equipoise as to whether the Veteran's current tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The November 1986 rating decision, which denied the Veteran's claim of entitlement to service connection for hearing loss, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the November 1986 rating decision is new and material, and the claim of entitlement to bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss Governing law and regulations In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim" if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis In the November 1986 rating decision, a RO denied the claim of entitlement to service connection for hearing loss based on the determination that the Veteran did not have a current disability. The Veteran did not submit a notice of disagreement with the November 1986 rating decision. No new and material evidence was received by VA within one year of the issuance of the November 1986 rating decision. As such, the November 1986 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the final November 1986 RO decision, the Veteran has submitted an April 2016 VA treatment record showing a diagnosis of bilateral hearing loss. The Board finds this evidence would trigger VA's duty to provide an examination in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. See Shade, 24 Vet. App. 110. ORDER New and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. Entitlement to service connection for tinnitus is granted. REMAND The Veteran's DD Form 214 shows that his most significant duty assignment was an antiaircraft artillery gun battalion. Thus, the Board finds that he had in-service noise exposure. A VA examination is necessary to determine whether his bilateral hearing loss is related to active service. In a July 2016 statement, the Veteran asserted that he injured his low back in service from lifting and carrying heavy artillery shells. The Veteran is competent to report this injury, and in light of his duty assignment the Board finds that he is credible. A VA examination is required to determine whether a low back disorder is related to active service. A March 2015 request for information reflects that an office of the surgeon general report pertaining to the Veteran was located. The record reflects that on March 18, 2014, the service department sent that report to the VA scanning vendor to be directly uploaded into the electronic record instead of sending it to the RO. That office of the surgeon general report is, however, not of record. This document is potentially relevant to all pending claims, and the AOJ should attempt to obtain a copy of that report. The Veteran reports current treatment at the Albuquerque VA Medical Center. The RO last obtained treatment records from that facility in May 2016. As such, the RO should obtain any additional records from that facility since May 2016. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to identify all treatment for hearing loss, cancer of the prostate and bones, a low back disorder, and residuals of a stroke, and obtain any identified treatment records. Regardless of his response, obtain any additional treatment records from the Albuquerque VA Medical Center from May 2016 to the present. 2. Contact the service department and/or the VA scanning vendor and obtain a copy of the office of the surgeon general report pertaining to the Veteran that the service department sent directly to the VA scanning vender on March 18, 2014 and that is not currently in the electronic record. See March 2015 request for information. 3. After the development in 1 and 2 is completed, schedule the Veteran for a VA audiological examination to determine the nature and severity of his hearing loss. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of his pertinent medical history, current complaints, and the nature and extent of any disability due to hearing loss. After reviewing the file, the examiner should opine as follows: Whether it is at least as likely as not (50 percent or greater) that any current hearing loss in either ear is related to active service, including in-service noise exposure. A clear rationale for the opinion would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the VA examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 4. After the development in 1 and 2 is completed, schedule the Veteran for a VA examination to determine the nature and severity of his low back disorder. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of his pertinent medical history, current complaints, and the nature and extent of any disability due to his low back disorder. After reviewing the file, the examiner should opine as follows: Whether it is at least as likely as not (50 percent or greater) that any current low back disorder is related to active service, including an in-service low back injury from lifting and carrying heavy artillery shells. A clear rationale for the opinion would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the VA examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 5. After completing the above action, the AOJ should readjudicate the Veteran's claims and, if applicable, undertake any additional development on the service connection claims pertaining to cancer of the prostate and bones and residuals of a stroke. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 ( 2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs