Citation Nr: 1801001	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  11-22 731	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic back pathology, claimed as back pain.

2. Entitlement to service connection for chronic back pathology, claimed as back pain.

3. Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for basil cell carcinoma, claimed as a skin lesion disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1967 to October 1988, with service in the Republic of Vietnam. He is the recipient of 6 Air Medals, the Vietnam Service Medal with 4 Bronze Stars, the Bronze Star, and the Vietnam Gallantry Cross with Palm, among other commendations. 

This matter comes to the Board of Veteran's Appeals (Board) on appeal from an October 2009 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
 
In October 2017, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  

The issues of entitlement to service connection for basil cell carcinoma, claimed as a skin lesion disability, and service connection for chronic back pathology, claimed as back pain, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. An unappealed November 1986 rating decision denied service connection for chronic back pathology, claimed as back pain. The Veteran was notified of the decision and did not timely appeal this decision, nor did he submit new and material evidence within the one-year period thereafter.

2. Evidence received since the November 1986 rating decision includes evidence that relates to previously unestablished facts necessary to substantiate a claim of entitlement to service connection for chronic back pathology.

3. The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is etiologically related to his military service.


CONCLUSIONS OF LAW

1.  The November 1986 rating decision that denied entitlement to service connection for chronic back pathology, claimed as back pain, is final. 38 U.S.C. § 7105 (2012).

2.  New and material evidence has been presented to reopen the claim of entitlement to service connection for chronic back pathology. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).

3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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).

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. App. 110, 117 (2010). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

In this case, the RO initially denied service connection for a disability involving the Veteran's chronic back pathology, claimed as back pain, in November 1986. The RO found, at that time, that the Veteran did not have a low back injury that was incurred in or was caused by service, and that the lack of a current disability was grounds to deny entitlement to service connection. The Veteran did not appeal the November 1986 rating decision and the decision is final. 38 U.S.C. § 7105. 

The evidence received since the November 1986 rating decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156(a). The evidence includes treatment records indicating that the Veteran has a diagnosis of chronic back pain, chronic appearing osteophytes with disc space narrowing of the thoracic spine, thoracic spondylosis, as well as degenerative changes of the spine. This is relevant to the issue of a current diagnosis. See 38 U.S.C. § 1153 (2012). Presuming the credibility of this evidence for purposes of reopening the claim, which the Board is required to do, the Board finds that the evidence raises a reasonable possibility of substantiating this claim and it is thus reopened. 38 C.F.R. § 3.156; see, 3 Vet. App. at 512-513.




II. Service connection 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

The Board finds that the evidence of record supports a grant of service connection for bilateral hearing loss.  First, there is evidence of a current disability. The Veteran has been diagnosed with bilateral hearing loss for VA purposes. See April 2009 VA examination. 

Second, there is evidence of an in-service event, disease, or injury.  In that regard, the Veteran has consistently stated that he was exposed to high levels of noise throughout his military career as an aviator. Further, the Veteran has consistently stated that he was exposed to noise while deployed in Vietnam. See October 2017 Board Hearing Transcript.

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to service.  In that regard, the law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  38 U.S.C. § 5107. Although there is evidence against the claim, the evidence of record includes a November 2017 private treatment provider's opinion, which opines that the Veteran's bilateral hearing loss is "as likely as not" due to or related to the Veteran's military service and history of noise exposure. In formulating the opinions, the private treatment provider relied on his medical expertise, review of the Veteran's file, and an in-person examination of the Veteran. In addition, the opinion is supported with a clear and thorough rationale. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his military service.


ORDER

The application to reopen the claim of entitlement to service connection for a chronic back pathology, claimed as back pain, is granted. 

Entitlement to service connection for bilateral hearing loss is granted.


REMAND

The Board finds that additional development is needed before the claims on appeal can be decided.  Although the Board regrets the additional delay due to this remand, it finds that it is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 

With regard to the Veteran's claim for entitlement to service connection for a chronic back pathology disability, the Board notes that the Veteran has not been afforded a VA examination. The Veteran contends that his now reopened claim for entitlement to service connection for a chronic back pathology disability is etiologically attributable to a 1984 motor vehicle accident that occurred during his active service. Further, he contends that his continued military service as a helicopter pilot aggravated this condition.  Based on the evidence of record, the Board finds that a nexus opinion is required before the claim can be adjudicated on its merits, and thus the Veteran should be afforded a VA examination. 

With regard to the Veteran's claim for entitlement to service connection for his skin lesion disability, the Veteran has not yet been afforded a VA examination to determine the nature and etiology of his basil cell carcinoma, claimed as a skin lesion disability. He has been diagnosed with basil cell carcinoma, and asserts that this is related to his active service. Again, the Board finds that the Veteran should be afforded a VA examination.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should request that the Veteran provide the names and addresses of any healthcare providers who have provided treatment for his back and skin conditions. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 

 The AOJ should also obtain any outstanding VA medical records.

2. The AOJ should schedule the Veteran for VA examination to determine the nature and etiology of any back disability, specifically any chronic back pathology, to include the thoracic and lumbar spines. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements.  

The Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also specifically address the effects, if any, of the September 1984 motor vehicle accident, as well as the Veteran's military occupation as a helicopter pilot, with regard to his disability.  The examiner should also consider the June 2012 opinion from Dr. J. H., which relates that Veteran's pain in his neck, and the numbness and paresthesia in both arms to his September 1984 motor vehicle accident.  

The examiner must provide diagnoses, as appropriate, for any back disability.  If any previously diagnosed disorders are no longer present, the examiner must provide an explanation.

The examiner should opine whether it is at least as likely as not (50 percent probability or more) that the Veteran has a chronic back disability that manifested in, or is otherwise related to, the Veteran's military service. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it).

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. The AOJ should schedule the Veteran for VA examination to determine the nature and etiology of any skin lesion disability.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements.  

The Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner must provide diagnoses, as appropriate, for any skin lesion disability.  If any previously diagnosed disorders are no longer present, the examiner must provide an explanation.

The examiner should opine whether it is at least as likely as not (50 percent probability or more) that the Veteran has a skin lesion disability that manifested in, or is otherwise related to, the Veteran's military service, to include exposure to herbicide agents, notwithstanding  that it not on the presumptive list.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it).

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

4.  The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 

5.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 

5. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).

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).



______________________________________________
ANTHONY C. SCIRÉ, JR.
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs