Citation Nr: 18147434 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 18-14 676 DATE: November 5, 2018 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for dermatitis or claimed as eczema is dismissed. Entitlement to service connection for stage IV prostate cancer with obstructive nephropathy, as due to exposure to Agent Orange, is granted. Entitlement to service connection for multiple myeloma, as due to exposure to Agent Orange is, granted. Entitlement to service connection for type 2 diabetes mellitus, as due to exposure to Agent Orange, is granted. Entitlement to service connection for peripheral neuropathy of left leg/foot associated with type 2 diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of right leg/foot associated with type 2 diabetes mellitus, is granted. REFERRED CLAIM In October 2017, the Veteran filed a claim for an increased rating for dermatitis or eczema (Diagnostic Code 7806). However, the RO mistakenly adjudicated the issue of service connection for dermatitis, claimed as eczema, in the January 2018 rating decision. As this claim has not yet been adjudicated by the RO, the Board does not have jurisdiction over it, and as noted above, it is referred to the AOJ for initial adjudication. 38 C.F.R. § 19.9(b).   FINDINGS OF FACT 1. A July 1992 rating decision denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss; and the Veteran did not appeal that decision in a timely manner nor was any new and material evidence submitted within the appeal period. 2. Evidence added to the record since the final July 1992 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 3. The evidence of record does not establish that it is at least as likely as not that current bilateral tinnitus is related to service. 4. There is no issue in controversy with respect to the pending claim for service connection for dermatitis or eczema. 5. The Veteran was exposed to Agent Orange while stationed at the Royal Thai Air Force Base in Udorn, Thailand during the Vietnam Era, from July 1970 to March 1971. 6. The Veteran has current diagnoses of stage IV prostate cancer with obstructive nephropathy, multiple myeloma, and type 2 diabetes mellitus. 7. The Veteran’s current diagnoses of peripheral neuropathy of left and right legs and feet are associated with his type 2 diabetes mellitus. CONCLUSIONS OF LAW 1. The July 1992 rating decision that declined to reopen a claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (West 1991), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 2. New and material evidence having been received, the claim for entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a) (2017). 3. The issue of service connection for dermatitis or eczema is dismissed as already granted in a May 1992 rating decision. 38 U.S.C. § 7105(d)(5) (2012). 4. The criteria for service connection for stage IV prostate cancer with obstructive nephropathy, as due to exposure to Agent Orange, have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for multiple myeloma have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for type 2 diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for peripheral neuropathy of left leg/foot associated with type 2 diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 8. The criteria for service connection for peripheral neuropathy of right leg/foot associated with type 2 diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 9. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1961 to December 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2017 and January 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Anchorage, Alaska (RO). New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) In March 1992, the Veteran reported a history of hearing loss and attributed this condition to exposure to noise from firing guns in service. The RO denied the claim of service connection for bilateral hearing loss in a July 1992 rating decision. The Veteran did not submit new, but not material evidence within one year of the July 1992 rating decision. That evidence pertained to a different medical condition. He also filed an NOD with that rating decision, but only for an unrelated disability denied in the rating decision. He did not appeal the hearing loss issue. Therefore, it is final. 38 U.S.C. § 7105(c) (West 1991) [(2012)], 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992) [(2017)]. The basis of the July 1992 prior final denial was the RO’s findings that hearing loss was not noted in service at any time and a VA examination was negative for bilateral hearing loss, so bilateral hearing loss was not found by the evidence of record. Thus, in order for the Veteran’s claim to be reopened, evidence must have been added to the record since the July 1992 rating decision that addresses this basis. Evidence submitted and obtained since the July 1992 rating decision includes VA treatment records, VA examination, and lay evidence. In particular, an April 2006 VA Audiology evaluation including testing showing that the Veteran’s hearing did not meet the level set forth in § 3.385. Likewise, a November 2017 VA audiological examination report revealed sensorineural hearing impairment in the frequency range of 500 to 4000 Hertz in the left ear and in the frequency range of 6000 Hertz or higher in both ears, but not meeting the levels of § 3.385. Without addressing the merits of this evidence, the Board finds that the additional evidence addresses whether the Veteran currently has bilateral hearing loss that may be related to his service, and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both “new,’ as it has not previously been considered by VA, and “material,” as it raises the reasonable possibility of substantiating the Veteran’s claim. The Board thus finds that new and material evidence has not been submitted to reopen the issue of entitlement to service connection for bilateral hearing loss since the July 1992 rating decision. On this basis, the issue of entitlement to service connection for bilateral hearing loss is not reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss and tinnitus (as an organic disease of the nervous system), if manifest to a compensable degree within one year after discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2017). 2. Entitlement to service connection for tinnitus Relative to the tinnitus claim, the Board acknowledges that for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone because tinnitus is, by definition, “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003); see also Charles v. Principi, 16 Vet. App. 370 (2002). However, the Veteran has not reported a continuity of symptomatology since service with respect to his tinnitus. His service treatment records do not indicate a link between his tinnitus and an in-service injury; no tinnitus condition was noted on any examinations conducted during active duty, and there is also no objective evidence of tinnitus problems or symptoms after service; the first evidence of tinnitus complaints is the October 2017 VA examination report showing his report of long-term intermittent bilateral tinnitus. He denied any recurrent tinnitus during a March 1992 VA examination, which is affirmative evidence that tinnitus was not continuous after service. During the October 2017 VA examination, he could not indicate a specific date or circumstances of onset of his tinnitus. Further, no medical professional has linked the Veteran’s tinnitus to service and there is no evidence otherwise linking current tinnitus to service. Rather, the October 2017 VA examiner provided an opinion that the Veteran’s tinnitus is a symptom associated with his hearing loss and that both hearing loss and tinnitus are not caused by or a result of military noise exposure because he did not have a permanent positive threshold shift during active duty service when tested in November 1991 compared to the testing done in February 1973 and June 1961. The Board further notes that the Veteran denied a history of hearing loss on his November 1991 separation examination. In short, there is no competent medical or lay evidence in support of the Veteran’s claim for service connection for tinnitus. 3. Entitlement to service connection for dermatitis or eczema. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). In October 2017, the Veteran filed a claim for an increased rating for dermatitis or eczema (Diagnostic Code 7806). However, the RO mistakenly adjudicated the issue of service connection for dermatitis, claimed as eczema, in the January 2018 rating decision. Service connection for acne vulgaris with shaving rash and dyshidrosis (also known as dyshidrotic eczema) was granted in a May 1992 rating decision. This disability has been evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806 from January 1, 1992. The Veteran’s October 2017 claim was not filing a new claim of service connection, but rather asking for an increased rating. Instead of listing the name of the service-connected disability as “acne with shaving rash and dyshidrosis,” the Veteran’s claim instead listed the diagnostic code under which the rating is assigned, DC 7806 Dermatitis or eczema. This misunderstanding led the RO to adjudicate the claim as a new issue instead of a claim for increase. Thus, the Board finds that this issue should be dismissed as already granted and there is no justiciable case or controversy before the Board at this time with respect to this disability. 38 U.S.C. § 7105(d)(5) (2012). 4. Entitlement to service connection for stage IV prostate cancer with obstructive nephropathy as due to exposure to Agent Orange. 5. Entitlement to service connection for multiple myeloma as due to exposure to Agent Orange. 6. Entitlement to service connection for type 2 diabetes mellitus, as due to exposure to Agent Orange. The Veteran claims that he is currently with diagnosed with stage IV prostate cancer with obstructive nephropathy, multiple myeloma and type 2 diabetes mellitus that are directly related to his service. Specifically, he contends that it was caused by his exposure to herbicides, to include Agent Orange, while stationed at the Royal Thai Air Force Base (AFB) in Udorn, Thailand from July 1970 to March 1971. Through written statements, the Veteran has reported that he was assigned to the 432nd Supply Squadron and his supply compound was located on the perimeter of the air base. His duty station was located on the far east side of the base and six days a week, he travelled by bus from his barracks on the west side of the base to the east side of the base. He believes that on this side of the base, there were much thick and green foliage which was treated with herbicides. He also walked to a dining facility adjacent to the supply compound about a quarter mile, six days a week. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). 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. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military service, certain diseases, including prostate cancer, multiple myeloma, and type 2 diabetes mellitus, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). The medical evidence of record shows diagnoses of stage IV prostate cancer, multiple myeloma and type 2 diabetes mellitus in 2017. Accordingly, if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for his prostate cancer, multiple myeloma, and type 2 diabetes mellitus. While all veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, the Veteran’s service personnel records do not show that he served in Vietnam. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. The regulations pertaining to veterans exposed to herbicide agents generally require service within the land borders of Vietnam. The United States Court of Appeals for the Federal Circuit has upheld VA’s longstanding interpretation of the regulation requiring the presence of a service member at some point on the land mass or inland waters of Vietnam in order to benefit from the presumption. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 1002 (2009). Here, the Veteran does not contend, and the evidence does not show, that he ever had boots on the ground in Vietnam. Therefore, presumption of exposure to herbicides is not established based on any Vietnam service. With regard to the claim of exposure to herbicides while serving in Thailand, VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (“M21-1MR”). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Specifically, the report observes that some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from the Republic of Vietnam, or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). The M21-1MR provides that, if herbicide exposure cannot be conceded based upon the above described facts, the veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure. If the veteran fails to furnish the requested information, the claim will be referred to the Joint Services Records Research Center (JSRRC) coordinator to make a formal finding that sufficient information required to verify herbicide exposure did not exist. The claim may then be decided based on the evidence of record. Here, the Veteran’s service personnel records confirm that he was assigned to the 432nd Supply Squadron at the Udorn Royal Thai AFB in Thailand from July 1970 to March 1971 as an Inventory Management Supervisor. The Veteran’s MOS is not one of those listed in the MR21-1MR that has been shown to have served on or near the air base perimeter. Nevertheless, in written statements, the Veteran has reported that his duties as a supply specialist placed him near or at the perimeter of the Udorn Royal Thai AFB during his time stationed there from July 1970 to March 1971. He stated that while he was stationed in Thailand, he travelled from his barracks to the supply compound and storage units, and dining facility located near the perimeter of the base on a daily basis. In an August 2017 statement, the Veteran described that he primarily served as the NCOIC (non-commissioned officer in charge) of the Requisitioning unit; additionally, he served as Supply Distribution NCO, and as a supply driver, to distribute all supply correspondence and U.S. Mail, including supply data cards for automatic upgrades of supple records, he drove to the perimeter road on a weekly basis. He also indicated in an April 2014 statement that he came in contact with several of the aircrafts that were directly involved in the war efforts, flying daily over the Udorn AFB from their base en route to North Vietnam. The Veteran also submitted a photograph image which purportedly shows 55-gallon barrels of herbicides [Agent Yellow/Orange] stored near the 432nd USAF hospital at the Udorn AFB. Performance reports dated December 1969 and March 1971 show the Veteran, as NCOIC of the Requisitioning Unit, Stock Control Section, Supplies Management Branch, was responsible for requisitioning all supplies require to support all unites assigned to this base, insuring execution of related management actions, and submission of offline requisitions. These reports also indicate that the Veteran’s performance contributed significantly to enhance overall support to the 432nd tactical reconnaissance wing and provided high-level support required by operational combat units. In summary, the evidence of record shows that the Veteran served in Thailand during the Vietnam era the period in which VA has acknowledged that significant herbicides were used near the air base perimeter at Udorn AFB. While the record does not clearly identify whether the Veteran was exposed to herbicides while stationed at Udorn AFB in Thailand, the Board highlights that there is no basis in the record to question the Veteran’s credibility regarding his statements. The statements by the Veteran indicate that he regularly had contact with the base perimeter while travelling from his barracks to his supply compound near the perimeter, walking to the dining facility adjacent to the compound, and driving along the perimeter of the case while distributing all supply correspondence as NCOIC of the Requisitioning Unit and Supply Distribution NCO at the Udorn AFB. The Veteran’s statements as to the location and the type of duties performed by him while stationed in Thailand are competent and credible evidence of what he has personal knowledge of during his period of service in Thailand. There is no evidence of record that contradicts the Veteran’s claim as to the location and type of duties performed during his service in Thailand. The Veteran’s lay testimony, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran was exposed to herbicides during service. As the Veteran’s post-service medical records reflect diagnoses of stage IV prostate cancer, multiple myeloma, and type 2 diabetes mellitus, service connection is warranted for these disabilities, as these conditions are presumed to have been incurred during active duty service based on the Veteran’s exposure to herbicides during service in Thailand. 7. Entitlement to service connection for peripheral neuropathy of left leg/foot associated with type 2 diabetes mellitus. 8. Entitlement to service connection for peripheral neuropathy of right leg/foot associated with type 2 diabetes mellitus. (Continued on the next page)   The July 2017 VA Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire shows that the Veteran has a current diagnosis of diabetic peripheral neuropathy limited to his lower legs and feet. Given the Board’s determination granting service connection for diabetic mellitus herein, service connection for diabetic peripheral neuropathy to the bilateral lower legs and feet is also warranted. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel