Citation Nr: 18144416 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-25 688 DATE: October 24, 2018 ORDER New and material evidence has been received, and the Veteran’s claim of service connection for hearing loss is reopened. New and material evidence has been received, and the Veteran’s claim of service connection for tinnitus is reopened. Service connection for an immune disorder, including Lyme disease, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for arthritis of the joints, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a fatty tumor near the sternum, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. Service connection for hearing loss and tinnitus was denied in a September 2014 rating decision that was not appealed and became final. 2. Evidence added to the record since the September 2014 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for hearing loss, and raises the possibility of substantiating the claim. 3. Evidence added to the record since the September 2014 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for tinnitus, and raises the possibility of substantiating the claim 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an immune disorder, including Lyme disease. CONCLUSIONS OF LAW 1. Evidence added to the record since the September 2014 rating decision, denying service connection for hearing loss, is new and material, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence added to the record since the September 2014 rating decision, denying service connection for tinnitus, is new and material, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for an immune disorder, including Lyme disease, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1968 to November 1971, which included service in Vietnam. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, the Veteran’s March 2016 claim was submitted as a fully developed claim with a Fully Developed Claim Certification executed by the Veteran. Under the framework for a fully developed claim, a claim is submitted in a “fully developed” status, limiting the need for VA to undertake further development of the claim. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records (STRs) and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination, may still be required prior to the adjudication of the claim. The fully developed claim form includes notice to the veteran of what evidence is required to substantiate a claim and of the veteran’s and VA’s respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. Thus, the notice is part of the claim form submitted by the Veteran and satisfies the duty to notify. With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs) VA treatment records, and Social Security records have been obtained and associated with the claims file. The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained to fairly decide the issue addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Service Connection A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decisionmakers. 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be considered “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 1. New and material evidence to reopen the previously denied claim of hearing loss 2. New and material evidence to reopen the previously denied claim of tinnitus For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran’s claimed hearing disability until many years after separation from service, “[i]f evidence should sufficiently demonstrate a medical relationship between the veteran’s in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service....” Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service. At the time of the September 2014 rating decision, the evidence of record included the STRs, VA treatment records, and VA examination report. The STRs show that at the December 1968 entrance exanimation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 5 LEFT 5 5 5 5 5 At a February 1971 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 0 10 10 -10 LEFT 0 -10 -10 0 -10 At an August 1971 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -10 -5 LEFT -5 -10 0 0 -10 The STRs do not otherwise show any complaints, treatment, or diagnoses related to hearing loss and tinnitus. The Veteran had a VA examination in October 2013. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 50 45 LEFT 20 30 30 40 40 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. The Veteran was diagnosed with sensorinueral hearing loss. He reported in-service noise exposure from small arms, machine guns, rockets, mortars, artillery turbine engines, and aircraft. The current effect of hearing loss was difficulty hearing what people said to him, difficulty hearing with background noise, and difficulty hearing his phone ring. He had civilian noise exposure from working as a UPS driver for 19 years and from hunting. The examiner opined that since the STRs do not show a threshold shift, it was less likely than not that the hearing loss was a result of military service. The Veteran reported constant bilateral tinnitus at the examination that was more noticeable in the right ear. He was unable to recall a specific date or circumstance regarding the onset of tinnitus, but noticed it awhile after getting out of service. The examiner opined that it was less likely than not that tinnitus was a result of military noise exposure based on the lack of complaint and threshold shift in service. It was at least a likely as not that the tinnitus was associated with the Veteran’s hearing loss. VA treatment records from February 2014 and March 2014 show that the Veteran used hearing aids and had constant tinnitus. Opinions on etiology were not provided. The additional evidence added to the record since the September 2014 rating decision includes September 2009 VA treatment records at which the Veteran reported a gradual decrease in hearing, with the right side worse. The Veteran reported a history of military noise exposure and occasional ringing in the ears. He was diagnosed with right ear hearing loss above 1500 Hertz and left ear hearing loss from 6000 Hertz. The Veteran had an March 2010 otolaryngology examination for a Social Security claim at which he reported losing hearing over time. The Veteran reported military noise exposure from jet engines. An audiogram showed mild left sensorineural hearing loss and mild to moderate right sensorineural hearing loss. Word discrimination was 64 percent on the right and 84 percent on the left. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened. See Shade, 24 Vet. App. at 117. Specifically, the new evidence suggests that the Veteran may have a hearing loss and tinnitus related to service. Such evidence is presumed credible for the purposes of determining whether the evidence is new and material. Therefore, the additional evidence is both new and material, and the claims for service connection claim for hearing loss and tinnitus are reopened. 3. Service connection for an immune disorder, including Lyme disease, to include as due to herbicide exposure A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The record reflects that the Veteran served in Vietnam during the Vietnam era, and therefore he is presumed to have been exposed to herbicides. However, an immune disorder and Lyme disease are not included in the enumerated diseases related to herbicide exposure, and therefore service connection is not available on a presumptive basis due to herbicide exposure. See id. In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). The STRs do not show complaints, treatment, or diagnoses related to an immune disorder or Lyme disease. The post-service records do not show that the Veteran has had an immune disorder or Lyme disease. The Veteran submitted medical literature in May 2016 stating that any amount of dioxin damages the immune system. In July 2016 the Veteran submitted a chapter on immune systems disorders from a 2010 National Academy Press publication on veterans and Agent Orange that cites studies showing no consistent findings indicative of immunosuppression or increased risk of autoimmunity. The Board concludes that the Veteran does not have a current diagnosis of an immune disorder, to include Lyme disease, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Therefore, the claim for service connection must be denied. Because the evidence preponderates against the claim of service connection for an immune disorder, to include Lyme disease, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND VA treatment records to April 2018 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from April 2018 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Service connection for hearing loss 2. Service connection for tinnitus The September 2009 VA treatment records and March 2010 Social Security examination show that the Veteran reported military noise exposure and that he had had tinnitus and hearing loss for some time. The Board therefore finds that he must be scheduled for a new examination for the reopened claims before they can be decided on the merits. 3. Service connection for arthritis of the joints is remanded May 2011 VA treatment records state that the Veteran had arthritis in the cervical spine. At June 2014 VA treatment the Veteran complained of left hip pain that he had had for five years. He was diagnosed with ischial vs. trochanteric bursitis vs. atypical arthritis. The Veteran was diagnosed with osteoarthritis of the first metatarsophalangeal joints at March 2015 VA treatment. The Veteran reported at November 2015 VA podiatry treatment that he had arthritis in his big toes, and he was diagnosed with hallux limitus and calluses. In July 2016 the Veteran submitted a chapter on immune systems disorders from 2010 National Academy Press publication that cites occupational exposure studies showing some correlation with rheumatoid arthritis and a study showing no risk factors of rheumatoid arthritis and specific classes of pesticides. At March 2016 VA treatment the Veteran reported a long history of bilateral trigger finger. A possible diagnosis was osteoarthritis or degenerative joint disease associated with aging. June 2017 VA treatment records state that the Veteran had signs and symptoms of carpal tunnel syndrome and middle finger trigger finger on the right hand. The carpal tunnel symptoms in the left hand had resolved. The record shows that the Veteran has been diagnosed with arthritis. Furthermore, he has submitted medical literature indicating a possible correlation between herbicide exposure and arthritis. Although service connection for arthritis is not available on a presumptive basis due to exposure to herbicides, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. A VA examination must be obtained before the claim can be decided on the merits, and the examiner must consider the medical literature submitted by the Veteran. 4. Service connection for a fatty tumor near the sternum, to include as due to herbicide exposure VA treatment records beginning in June 2013 include removal of a benign substernal tumor in the Veteran’s medical history. The Veteran submitted a November 1987 study of Vietnam veterans which showed more benign fatty tumors than in a control group. The record shows that the Veteran has had a benign substernal tumor. Furthermore, he has submitted medical literature indicating a possible correlation between herbicide exposure and benign fatty tumors. Although service connection for fatty tumors is not available on a presumptive basis due to exposure to herbicides, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. A VA examination must be obtained before the claim can be decided on the merits, and the examiner must consider the medical literature submitted by the Veteran. The matters are REMANDED for the following action: 1. Obtain VA treatment records from April 2018 to the present. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of his hearing loss and tinnitus. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus were incurred in service or within a year of service or are otherwise related to service. The examiner is advised that 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 in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The examiner is also asked to comment on whether the pattern of the Veteran’s hearing loss is consistent with noise induced hearing loss. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of arthritis of the joints. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s arthritis of the joints was incurred in service or within a year of service or are otherwise related to service. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s arthritis of the joints was caused by in service exposure to herbicides on a direct basis without regard to arthritis not being on the list of presumptive diseases related to herbicide exposure. The examiner is advised that 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 in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The rationale must include discussion of the 2010 National Academy Press publication that is in the record. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 4. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of the fatty tumor near the sternum. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s fatty tumor near the sternum was incurred in service. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s fatty tumor near the sternum of the joints was caused by in service exposure to herbicides on a direct basis without regard to fatty tumors not being on the list of presumptive diseases related to herbicide exposure. The examiner is advised that 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 in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The rationale must include discussion of the November 1987 study of Vietnam veterans that is in the record. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel