Citation Nr: 18154705 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-32 265 DATE: December 3, 2018 ORDER New and material evidence having not been received, the application to reopen the previously denied claim of service connection for benign lesion left vocal cord, post-operative, is denied. REMANDED Entitlement to service connection for bilateral hemianopsia and refractive error, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for dry eye, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for eustachian tube dysfunction, left ear, to include secondary to service-connected disability, is remanded. Entitlement to service connection for tinnitus, to include as secondary to service connected disability, is remanded. FINDINGS OF FACT 1. In an August 2009 decision, the Board determined that new and material evidence had not been received to reopen the previously denied claim of entitlement to service connection for post-operative residuals of a benign lesion on the vocal cord (throat disability). 2. The evidence received since the final August 2009 Board decision determining that new and material evidence had not been received to reopen the previously denied clam of entitlement to service connection for a throat disability is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2009 Board decision determining that new and material evidence had not been received to warrant reopening of the previously denied claim of entitlement to service connection for a throat disability is final. 38 U.S.C. § 7104 (2002); 38 C.F.R. § 20.1100 (2009). 2. New and material evidence has not been received to warrant reopening of the claim of entitlement to service connection for a throat disability. 38 U.S.C. §§ 5107, 5108 (2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1962 to January 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. In the Veteran’s July 2016 substantive appeal (VA Form 9), he requested a Board hearing. In correspondence received in July 2018, the Veteran indicated that he wanted to withdraw his request for a Board hearing. In light of the forgoing, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). Referred Issues The Board observes that in correspondence received in April 2014, the Veteran’s representative raised claims of entitlement to service connection for chronic upper respiratory infections, headaches, and sinus pain. In an April 2014 Form VA 21-526b, Veteran Supplemental Claim, the Veteran raised the issue of entitlement to service connection for a pituitary tumor (macroadenoma). The record currently available to the Board contains no indication that these issues have been addressed. Therefore, the Board does not have jurisdiction over them, and the claims are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. 19.9(b) (2017). 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for benign lesion left vocal cord, post-operative In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. 7104, 7105 (2014); 38 C.F.R. 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. Analysis Historically, the issue of entitlement to service connection for a throat disability was denied in a June 1982 rating decision because the claimed throat disability was not treated during military service and was determined to be a separate disease entity from the Veteran’s service-connected residuals of nasal surgery and deviated septum. The Veteran filed a timely appeal. Thereafter, in a May 1983 decision, the Board denied service connection for a throat disability (characterized as pose-operative residuals of a benign lesion of the left vocal cord). In this regard, the Board concluded that the evidence of record did not show a diagnosis of a vocal cord defect during active service and the disability was not diagnosed until many years after discharge from active service. The Veteran thereafter sought reopening of his claim on several subsequent occasions. In a February 2003 decision, the Board determined that the Veteran’s claim warranted consideration on a de novo basis in light of an award of service connection for sinusitis. After considering the claim on the merits, the Board denied service connection finding that the Veteran’s throat disorder was not the result of disease or injury in active service or secondary to a service-connected disability, including sinusitis. In February 2004, the Board denied the Veteran’s request for a reconsideration of its decision. In an August 2009 decision, the Board denied the application to reopen the claim of service connection for a throat disability finding that new and material evidence had not been received. The Board also determined that new and material evidence had not been received to reopen a previously denied claim of for compensation under 38 U.S.C. § 1151 for complications of gastroesophageal reflux disease (GERD). In this appeal, the Veteran again seeks to reopen the previously denied claim of service connection for a throat disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). The evidence of record at the time of the August 2009 Board decision included service treatment records, post-service treatment records noting treatment for throat problems including hoarseness, soreness, and lesion removal, lay statements from the Veteran asserting that the claimed condition is secondary to his service-connected nasal disability, and a May 1999 private medical opinion asserting that the claimed condition is secondary to GERD. The additional evidence received since the final August 2009 Board decision includes additional medical records noting continued treatment for throat symptoms and lay statements asserting that the claimed condition is secondary to laryngopharyngeal reflux and the Veteran’s service-connected nasal disability. The Board has carefully considered the record, with particular attention to the additional evidence received since the August 2009 Board decision. After considering this additional evidence, the Board finds that it is not new and material within the meaning of 38 C.F.R. § 3.156. With regard to the additional lay statements suggesting that the Veteran’s throat disability is secondary to his service-connected nasal disability, the Board finds that such statements are cumulative as these contentions were previously of record and considered in prior adjudications. With regards to the lay statements arguing that the claimed disability is secondary to laryngopharyngeal reflux, the Board notes that service connection has not been awarded for laryngopharyngeal reflux; thus, such assertions do not provide a basis on which to reopen the claim. As for the newly added medical evidence, the Board finds that it is cumulative. While this evidence demonstrates continued symptoms such as hoarseness and soreness, these symptoms were previously of record and considered. The additional evidence contains no indication of a relationship between the Veteran’s throat disability and his active service or to a service-connected disability. Further, the evidence does not relate to an unestablished fact necessary to substantiate the claim. The Board concludes that this evidence neither triggers VA’s duty to assist nor raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that the additional evidence received since the final August 2009 Board decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for a throat disability is not reopened.   REASONS FOR REMAND 1. Entitlement to service connection for bilateral hemianopsia and refractive error, to include as secondary to service-connected disability, is remanded. 2. Entitlement to service connection for dry eye, to include as secondary to service-connected disability, is remanded. The Veteran asserts that service connection is warranted for bilateral hemianopsia, refractive error, and dry eye. Specifically, he contends that the claimed disabilities are secondary to a pituitary tumor and his service-connected nasal disability. In April 2014, the Veteran filed claims of service connection for a pituitary tumor, bilateral hemianopsia, refractive error, and dry eye. The claims regarding the Veteran’s eye disabilities were adjudicated in an August 2014 rating decision. The issue of entitlement to service connection for a pituitary tumor, however, has not yet been adjudicated by the AOJ. The Board therefore has no jurisdiction to adjudicate this claim. The claims over which the Board does have jurisdiction -- entitlement service connection for bilateral hemianopsia, refractive error, and dry eye -- are inextricably intertwined with the pending claim of service connection for a pituitary tumor. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). In this regard, the award of service connection for a pituitary tumor could impact the eye disability claims currently on appeal. Therefore, these claims must be remanded pending adjudication of the pituitary tumor clam. 3. Entitlement to service connection for eustachian tube dysfunction, left ear, to include secondary to service-connected disability is remanded. The Veteran assert that service connection is warranted for left ear eustachian tube dysfunction. He contends that the claimed disability is secondary to his service-connected nasal disability. Post-service treatment records indicate that the Veteran’s left ear eustachian tube dysfunction has been treated with Nasonex, which is a nasal spray. Such evidence suggests that there may be a relationship between the Veteran’s left ear disability and his service-connected nasal disability. In light of the foregoing, the Board finds that a VA examination should be provided on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection to bilateral hearing loss and tinnitus, to include as secondary to service-connected disability, is remanded. The Veteran assert that service connection is warranted for bilateral hearing loss and tinnitus. He contends that the claimed disabilities are secondary to his service-connected nasal disability. VA clinical records suggests that the Veteran’s tinnitus and hearing loss disability may be secondary to his left ear eustachian tube dysfunction remanded herein. The Veteran has not undergone a VA examination in relation to these claims. Given his contentions and the evidence of record, the Board finds that a remand is necessary to obtain a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Develop and adjudicate the claim of entitlement to service connection for a pituitary tumor. If the claim is denied, the Veteran must be notified of his appellate rights. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ear eustachian tube dysfunction. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left ear eustachian tube dysfunction was incurred in service or is otherwise causally related to the Veteran’s active service. (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left ear eustachian tube dysfunction was caused by his service-connected nasal disability? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s left ear eustachian tube dysfunction has been aggravated (chronically worsened) by his service-connected nasal disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his hearing loss disability and tinnitus. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus were incurred in service or are otherwise causally related to the Veteran’s active service? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus were caused by his left ear eustachian tube dysfunction or service-connected nasal disability? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus have been aggravated (chronically worsened) by his left ear eustachian tube dysfunction or service-connected nasal disability?   If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel