Citation Nr: 1802021	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-07 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for hearing loss, and if so, entitlement to service connection for the same. 

2.  Whether new and material evidence has been received to reopen a claim of service connection for a right axillary nodule, claimed as a shell fragment wound, and if so, entitlement to service connection for the same. 

3.  Entitlement to service connection for scars of the right shoulder, arms, hands and face.

4.  Entitlement to service connection for a skin condition, claimed as rash, to include as due to exposure to herbicide agents.

5.  Entitlement to service connection for dental problems, claimed as loss of teeth. 

6.  Entitlement to service connection for a deviated nasal septum. 

7.  Entitlement to service connection for bilateral cataracts. 

8.  Entitlement to service connection for vision problems, to include right eye damage and depth perception problems. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. McDonald, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1967 to May 1976.  The Veteran's service in the Republic of Vietnam is confirmed from January 1968 to January 1969 and from September 1971 to August 1972.  In addition to other awards and decorations, the Veteran is in receipt of two Bronze Star Medals, the Purple Heart, and Combat Infantryman's Badge.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen the claims of service connection for hearing loss and the Veteran's right axillary condition, and denied entitlement to the remaining service connection benefits currently sought on appeal.
In any case involving a finally denied claim, the Board must separately address whether new and material evidence has been received to reopen the claim before addressing its merits, regardless of whether or not the agency of original jurisdiction has already addressed the question.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).

The Board notes that the Veteran's perfected appeal included a claim of entitlement to service connection for tinnitus.  VA Form 9, March 2013.  However, during the pendency of the appeal service connection for tinnitus was granted in a November 2014 RO decision.  This constitutes a full grant of the benefit sought, so that issue is no longer before the Board. 

The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in June 2017 to present testimony on the issues on appeal.  

The issues of service connection for a right axillary nodule claimed as a shell fragment wound, scars of the right shoulder, arms, hands and face, rashes, knocked out teeth, a deviated nasal septum, and vision problems are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Service connection for hearing loss, identified as deafness, and shell fragment wounds of the right axillary (armpit) area were last denied in an August 1977 rating decision, of which the Veteran was notified on September 12, 1977.   

2.  At the time of the September 1977 denial, hearing loss was denied based on the absence of a current diagnosis, and the right axillary condition was denied on the absence of shell fragment wounds documented in the service treatment records.  

3.  The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one year appellate period following September 12, 1977.

4.  Evidence submitted since the September 1977 denial is new, and when considered in conjunction with the evidence previously of record, raises a reasonable possibility of substantiating the claims.

5.  Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed bilateral hearing loss is attributable to his military combat service. 

6.  Resolving all reasonable doubt in favor of the Veteran, his bilateral traumatic cataracts, status-post surgical removal, are attributable to combat injuries sustained during active military service. 


CONCLUSIONS OF LAW

1.  The September 1977 rating decision that denied the Veteran's claims of service connection for hearing loss and shell fragment wounds of the right axillary area is final.  38 U.S.C. § 4005 (1970) [currently codified at 38 U.S.C.A. § 7105 (West 2012)]; 38 C.F.R. §§ 19.118, 19.133 (1977) [currently codified at 38 C.F.R. §§ 20.302, 20.1103 (2017)]. 

2.  The criteria for reopening the claims of entitlement to service connection for hearing loss and shell fragment wounds of the right axillary area have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  The criteria to establish service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). 

4.  The criteria to establish service connection for bilateral cataracts are met.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  This appeal has been considered with respect to VA's duties to notify and assist.  With respect to the Veteran's petition to reopen previously denied claims, and the issues of service connection for hearing loss and cataracts, given the favorable outcomes herein, no further explanation of how VA has fulfilled the duties to notify and assist is necessary.  

The Board has reviewed all of the evidence within the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the given claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Petition to Reopen

Where a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim.  38 U.S.C. § 7105; 38 C.F.R. § 3.156(a).  New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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).

Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold.  Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim.  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

In the present case, the Veteran's claim of entitlement to service connection on the relevant issues was last finally denied in September 1977.  Since that decision became final, the Veteran has subsequently submitted evidence of his currently diagnosed hearing loss and provided lay history regarding the incident in which the shell fragment wound to the right axillary area is alleged to have occurred.  Hearing Transcript, June 2017; Private audiological evaluation, May 2012.  This evidence is both new and material, relating specifically to the elements upon which the claims were previously denied, and raises a reasonable possibility of substantiating the underlying claim of service connection.  

As new and material evidence has been received, the claims of entitlement to service connection for hearing loss and a right axillary nodule, claimed as a shell fragment wound, are reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  




Service Connection 

Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

The competency of evidence is a legal concept determining whether testimony may be heard from a particular witness on a given subject.  Any claimant before VA is generally competent to provide testimony concerning factual matters of which he or she has firsthand knowledge, to include experiencing physical symptoms such as pain.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding lay person competent to report symptoms of a hip disorder including pain, an observably rotated foot, and a limp).  

Under certain circumstances, lay statements may support a claim by showing the occurrence of lay-observable events or the presence of disability, or symptoms of disability that are capable of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994) (finding lay evidence is competent if provided by a person with knowledge of the facts or circumstances and conveys matters that can be observed and described by a person without specialized knowledge or training); 38 C.F.R. § 3.159(a)(2) (2017).  However, although a lay person can provide an account of matters they actually observed, or are within the realm of their own personal knowledge, a lay witness cannot offer evidence that requires specialized medical knowledge such as causation or etiology of a disease or injury.  Layno, 6 Vet. App. 465. 

Additionally, if, as here, a veteran engaged in combat with the enemy during his service, his lay testimony of injuries sustained in service will be sufficient to establish an in-service incurrence so long as it is consistent with the circumstances, conditions, or hardships of that service.  38 U.S.C. § 1154(b).  In this case, the Veteran has confirmed combat service in the Republic of Vietnam as shown on his DD Form 214.  He contends that during this service he was in close proximity to an incoming exploding round from a rocket propelled grenade (RPG).  Hearing transcript, June 2017.  This is found to be generally consistent with the circumstances of his service as an infantryman.  Thus, the described in-service event is established based upon the Veteran's testimony.  38 U.S.C. § 1154(b).   

However, pertinent case law also provides that 38 U.S.C. § 1154(b) does not create a presumption to establish service connection for a combat Veteran's alleged disability.  The Veteran is still required to meet his evidentiary burden as to the remaining elements required for service connection, specifically a showing that there is a current disability that is causally related to his active service.  See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).

Hearing Loss

During the current appellate period in May 2012, a Doctor of Audiology diagnosed the Veteran with a gradually sloping mild to moderately severe sensorineural hearing loss, bilaterally.  This audiologist also documented the Veteran's report of trauma induced hearing loss while in the military and exposed to large caliber gunfire.  Private audiology evaluation, May 2012. 

In fact, the Veteran describes experiencing a period of temporary deafness during his active service after a particularly active firefight.  Hearing transcript, June 2017.  A consistent report is also documented on a periodic medical examination during service in November 1971.  At that time, the examiner noted the Veteran's report of being a gunner in 1968 and experiencing hearing loss in both ears, lasting one day, with no lasting difficulty.  The associated audiometric results shown on the 1971 examination report list only that a whisper test was normal.  Service treatment records.  

Subsequently, upon separation examination in April 1976, the following audiometric results were documented:





HERTZ


500
1000
2000
4000
RIGHT
20
5
10
30
LEFT
15
5
5
10

Although there was no diagnosis of hearing loss written on the separation examination report, the Board finds the Veteran's credible lay testimony, taken in conjunction with the noted reduction in hearing acuity on separation examination to be evidence of an in-service hearing loss.  

Notably, organic diseases of the nervous system, which includes sensorineural hearing loss, are listed as chronic conditions under 38 C.F.R. § 3.309(a).  VA regulation dictates that when a chronic disease is shown as such during service or within the applicable presumptive period following service, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In the event that chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  

Here, in a post-service VA examination in June 1977, the Board acknowledges that an examiner found that the Veteran's hearing loss was not disabling for VA compensation purposes at the time.  However, the Veteran has credibly described experiencing persistent and ongoing symptoms of diminishing hearing since service.  

A subsequent September 2014 VA examiner who was not able to personally examine the Veteran, but did conduct a review of the claims file stated that the 1976 examination did show a mild hearing loss during service, although it appeared to have resolved to within normal limits by the following year at the 1977 examination.  The examiner further noted that the whisper test used in 1971 lacks the sensitivity needed to detect high frequency hearing loss such as that resulting from the type of noise exposure described by the Veteran.  In the end, the September 2014 examiner opined that hearing loss due to noise exposure should occur within months to one year of exposure, not over many decades, thus this Veteran's current hearing loss was determined to be less than a 50 percent probability to have been incurred from military noise exposure.  VA medical opinion, September 2014. 

However, 38 U.S.C. § 1154(b) dictates that in the case of a veteran who has engaged in combat with the enemy and provided sufficient proof of disease or injury sustained in such service, every reasonable doubt shall be resolved in favor of the combat veteran.  Service-connection of such injury or disease may generally be rebutted only by clear and convincing evidence to the contrary.  Such is not present here, and the Board finds that the Veteran's current bilateral hearing loss disability has not been satisfactorily disassociated from the hearing loss experienced and documented during his active military service.  Furthermore, the symptomatology described by the Veteran is generally consistent with the continuity of symptomatology contemplated by 38 C.F.R. § 3.303(b).  On this basis, service connection for bilateral hearing loss is warranted.  38 C.F.R. §§ 3.102, 3.303. 

Bilateral Cataracts

The Veteran underwent right eye cataract removal surgery in February 2012, followed by left eye cataract removal surgery in May 2012.  Each was described as a dense white traumatic cataract resulting in painless but progressive loss of vision interfering with the Veteran's daily activities.  Private treatment records, May & February 2012.  Thus, there is a current disability, or at least the residuals thereof, and the first element for service connection is met. 

As discussed above, the Veteran has also credibly described combat injuries sustained when he was in close proximity to an exploding grenade during his Vietnam service.  The Veteran is in receipt of the Combat Infantryman's Badge and Purple Heart, and is considered a combat Veteran.  The circumstances he described are consistent with the circumstances of his service.  Thus, an in-service event is established based upon his testimony, satisfying the second element necessary for service connection.

Finally, the Board finds competent medical evidence of a relationship between the Veteran's current disability and the described in-service event in an October 2011 private treatment note.  At that time, the practitioner noted the Veteran's description of seeing as though he is looking thorough a "foggy window," noting the Veteran's described history of shrapnel hitting the right eye in 1968 and diagnosing traumatic hypermature cataract.  Similar notations are made of the left eye cataract being of a traumatic nature.  See, e.g., Private treatment record, May 2012.  

On this basis, the Board finds that there is a current diagnosis, and in-service event, and competent medical evidence of a causal relationship between the two.  The Board resolves any reasonable doubt in favor of the Veteran and finds service connection for bilateral cataracts is warranted.  38 C.F.R. §§ 3.102, 3.303.  


ORDER

The claim of entitlement to service connection for hearing loss is reopened. 

The claim of entitlement to service connection for a right axillary nodule, claimed as a shell fragment wound, is reopened. 

Service connection for bilateral hearing loss is granted.

Service connection for bilateral cataracts is granted. 


REMAND

The Veteran has not been afforded a medical examination in regard to his claims of entitlement to service connection for a right axillary nodule, various scars, a skin condition, loss of teeth, deviated septum, or vision problems.  

VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury, or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  Id. at 83.

The Veteran has previously expressed frustration at not being afforded examinations on these claimed disabilities due to his status as an incarcerated individual throughout much of the current appeal.  However, the record reflects that he was released in or around August 2016 and is now able to report for examinations. 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination, or examinations as appropriate, with medical professionals of sufficient expertise to determine the nature and etiology of the Veteran's right axillary nodule (claimed as a shell fragment wound), scars of the right shoulder, arms, hands and face, rash or other skin condition, loss of teeth, deviated septum, and vision problems.  

The electronic claims file must be made available for review by the examiner prior to each scheduled examination.  After reviewing the claims file and personally examining the Veteran, each examiner should answer the following questions as appropriate to their area of expertise:

a. Is there a currently diagnosed right axillary nodule, claimed as a shell fragment wound, also identified during service and alternately diagnosed as folliculitis?

b. Please fully describe any/all identifiable scars of the right shoulder, arms, hands, and face, other than the already service-connected scar of the upper lip. 

c. Is there a currently diagnosed deviated septum, or any residuals thereof to include claimed breathing problems, runny mucus, and coughing?

d. For any condition identified above, please opine whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed disability began in service, or is otherwise related to the Veteran's military service, to include the combat incident credibly described by the Veteran of being in close proximity to an exploding round from a rocket propelled grenade resulting in potential shell fragment wounds.

e. Is there a currently diagnosed rash or other abnormal skin condition?

f. For any rash or abnormal skin condition diagnosed above, please opine whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed disability began in service, or is otherwise related to the Veteran's military service, to include his presumed exposure to herbicide agents in Vietnam.

g. What are the Veteran's current dental disorders?  Any existent dental disorder must be specifically identified and described.
   i. Does he have impairment of the mandible, loss of a portion of the ramus, maxilla, or loss of teeth due to loss of substance of the body of the maxilla or mandible? 
   
   ii. Does he have defective or missing teeth, tooth disease, dental abscess, or disease of the periodontal tissue? 
   iii. If any of the above dental disorders are diagnosed, is it at least as likely as not (a 50 percent or greater probability) that any of these problems began in or is related to active service, to include any trauma related to the combat incident credibly described by the Veteran of being in close proximity to an exploding grenade.
   
h. Beyond the service-connected postoperative bilateral cataracts and any developmental errors of refraction, what are the Veteran's currently diagnosed vision problems, to include any diagnoses claimed as right eye damage and depth perception problems?  Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed eye disability or vision problems began in or are related to active service, to include the combat incident credibly described by the Veteran of being in close proximity to an exploding grenade?

Each examiner should review all pertinent records associated with the claims file, including the Veteran's medical records and relevant lay statements.  All pertinent symptomatology and findings must be reported in detail.  

In rendering the requested opinions, each examiner must be aware that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a particular basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  

A clear and complete rationale for any opinions or conclusions expressed should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

If any examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 

Each examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

2. Undertake any other development deemed warranted, and then readjudicate the Veteran's claim on the basis of the additional evidence.  If a benefit sought on appeal is not granted, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board.  

The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs