Citation Nr: 1805552	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-21 994	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple lipomata and, if so, whether service connection is warranted.

2. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

N. Sangster, Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to October 1969,

These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

The Veteran had a hearing before the undersigned in November 2016.  A copy of the transcript is of record.

The issues of entitlement to service connection for bilateral hearing loss and service connection for multiple lipomata 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 May 1994 rating decision denied service connection for multiple lipomata.

2. The evidence received since the May 1994 rating decision is not cumulative or redundant of that considered previously, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for multiple lipomata.




CONCLUSIONS OF LAW

1. The May 1994 rating decision denying the Veteran's claim for service connection for multiple lipomata is final.  38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2017).

2. New and material evidence has been received since the May 1994 rating decision denying the Veteran's claim for service connection for multiple lipomata.  38 U.S.C. § 5108 (2014); 38 C.F.R. §§ 3.156(a) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c) (2014).  An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as evidence not previously submitted to agency decision makers.  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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a "low threshold", and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening".  The Court emphasized that the post-VCAA versions of this regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Initially, the Veteran filed a claim for service connection for multiple lipomata in May 1984 after his registration for the VA Agent Orange Registry in 1983 and subsequent physical examination revealed a diagnosis of multiple lipomata.  He stated that he believed that his tumors were caused by exposure to Agent Orange.  His claim was denied in an unappealed September 1984 rating decision, at which time the RO noted that his service treatment records were negative for any lipomas.  

The Veteran again submitted a claim for multiple lipomata in March 1990.  At that time, he stated that while aboard the USS Alstede supply ship, he came into direct contact with Agent Orange and alleged that while moving the barrels, Agent Orange would leak out onto his clothes.  He stated that he had maneuver the barrels on pallets so they could be hi-lined onto ships going to Vietnam.  In an unappealed May 1994 rating decision, the RO once again denied service connection for multiple lipomata finding that it was not one of the presumptive diseases associated with herbicide exposure and that there was no other direct relationship between the multiple lipomata and active duty.  The May 1994 rating decision is final.  38 U.S.C. § 7105(c) (2014).

Since the May 1994 rating decision denying the claim for service connection for multiple lipomata, additional evidence has been received, including VA and private medical treatment records showing a diagnosis of multiple lipomata; lay statements and testimony; and an excerpt from American Legion Magazine indicating that veterans exposed to Agent Orange exhibited higher rates of non-cancerous fatty tumors.  

In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).

Here, the additional lay statements from the Veteran are new, in that he now asserts that he had lipomas during service and when he was discharged from service in 1969, and that he has continued to have tumors after service.  See Statements in Support of Claim, dated June 30, 2010, February 15, 2013; Hearing Transcript, dated November 15, 2016.  His statements suggest a relationship between his current multiple lipomata and his military service.  As such, his statements are material, as they relate to an unestablished fact necessary to substantiate the claim and raise a reasonable possibility of substantiating the claim.  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept, as true, assertions that are beyond the competence of the person making them).

Accordingly, the evidence is new and material and the petition to reopen the claim for service connection for multiple lipomata is reopened.  38 C.F.R. § 3.156.  


ORDER

The petition to reopen the claim for entitlement to service connection for multiple lipomata is granted.


REMAND

Although the Board sincerely regrets the further delay, a remand is required in this appeal to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claims, so that he is afforded every possible consideration.

The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. §  3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent.  38 C.F.R. § 3.385.

If the degree of hearing loss noted on an entrance medical examination does not meet VA's definition of a "disability" for hearing loss under 38 C .F.R. § 3.385, the Veteran is entitled to the presumption of soundness under 38 C .F.R. § 1111.  McKinney v. McDonald, 28 Vet. App. 15, 21   (2016).

On the Veteran's entrance examination in September 1965, the results of two audiometer tests were recorded.  Puretone thresholds in decibels were as follows:  On the first audiometer, for the right ear,  5 at 500 Hertz; -5 at 1000 Hertz; 5 at 2000 Hertz; 10 at 3000 Hertz; and 35 at 4000 Hertz.  For the left ear, 0 at 500 Hertz; 10 at 1000 Hertz; 0 at 2000 Hertz; 15 at 3000 Hertz; and 45 at 4000 Hertz.  On the second audiometer, for the right ear,  5 at 500 Hertz; -5 at 1000 Hertz; 0 at 2000 Hertz; -5 at 3000 Hertz; and 35 at 4000 Hertz.  For the left ear, -5 at 500 Hertz; -5 at 1000 Hertz; -5 at 2000 Hertz; 5 at 3000 Hertz; and 30 at 4000 Hertz.  

Service treatment records dated in April 1969 show that the Veteran complained of decreased hearing acuity in his left ear.  Impacted cerumen was removed.

The Board has historically considered that Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization - American National Standards Institute (ISO-ANSI) standards when providing audiograms on November 1, 1967.  However, it would be helpful here to obtain copies of the Veteran's actual in-service audiograms.

The Veteran should also be scheduled for a VA skin examination to determine whether his current lipoma condition is related to his military service.  A copy of his Agent Orange Registry examination conducted in 1983 should also be obtained.

Accordingly, the case is REMANDED for the following action:

1. Make arrangements to obtain the Veteran's complete service treatment records, to include copies of all in-service audiograms.

2.  Make arrangements to obtain a copy of the Veteran's Agent Orange Registry examination, conducted in 1983.  See VA Letter to the Veteran, dated July 11, 1983.  

3.  Make arrangements to obtain the Veteran's VA treatment records, dated from September 2013 forward.

4. Thereafter, schedule a VA skin examination to determine the etiology of the Veteran's multiple lipomata.  The claims file and a complete copy of this decision and REMAND must be made available to and reviewed by the examiner in conjunction with the examination.  The VA examination report should indicate that this has been accomplished. 

The examiner should identify all skin disorders found to be present, including any multiple lipomata.

The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current skin disorder, including any multiple lipomata, had its clinical onset during active service or is related to any incident of service.  

In providing this opinion, the examiner must consider the service treatment records showing treatment for warts in February, August, November and December 1968; and treatment for tender scar on the left upper arm in August 1969 which had gotten progressively worse over six months, with an attempted aspiration.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

5.  Finally, readjudicate the claims on appeal.  If the claims continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration.

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. §§ 5109B, 7112 (West 2014).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs