Citation Nr: 18154965 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 14-44 349 DATE: December 3, 2018 ORDER The appeal as to the claim of entitlement to service connection for bilateral tinnitus is granted. The Board, having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for squamous cell carcinoma, is granted. REMANDED The appeal as to the claim of entitlement to service connection for bilateral hearing loss is remanded. The appeal as to the claim of entitlement to service connection for erectile dysfunction (ED) as secondary to service-connected disabilities, to include medications prescribed, is remanded. The appeal as to the claim of entitlement to service connection for squamous cell carcinoma is remanded. FINDINGS OF FACT 1. The Veteran’s current bilateral tinnitus is etiologically related to his active service. 2. A March 2008 rating decision denied the claim of entitlement to service connection for squamous cell carcinoma; the Veteran did not appeal the decision and it became final. 3. Evidence subsequently received is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for squamous cell carcinoma. 4. The claim of entitlement to service connection for squamous cell carcinoma is reopened. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The March 2008 rating decision that denied the claim of entitlement to service connection for squamous cell carcinoma is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 3. New and material evidence has been presented to reopen a claim of entitlement to service connection for squamous cell carcinoma. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from May 1964 to June 1970. The Veteran’s service was under honorable conditions. Among other commendations, the Veteran received the Vietnam Service Medal with one Silver Star and one Bronze Star. These matters are on appeal from a January 2014 rating decision. In his December 2014 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. In August 2015 he was notified of his September 2015 scheduled hearing; however, he failed to appear or request to reschedule the hearing. As such, the Board may proceed to adjudicate this claim. See 38 C.F.R. § 20.704(e) (2018). Service Connection – Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for tinnitus. The Veteran contends that his current bilateral tinnitus began during active service and has continued to the present. Specifically, he asserts that he was exposed to acoustic trauma coincident to his duties in the United States Army, as an auto repairman. He further reported that he experienced ringing in his ears since service. In this regard, he asserts that he was consistently exposed to rifles and artillery explosions while serving in the Republic of Vietnam during the Vietnam Era. Service treatment records are negative for complaints of, treatment for, or a diagnosis of tinnitus. Post-service records include the report of an June 2013 VA examination report during which the Veteran reported ringing in his ears for more than three decades. He also denied post-service recreational noise exposure. Upon examination and review of the record the examiner diagnosed bilateral tinnitus. The examiner found that the Veteran was exposed to acoustic trauma due to his assignment as a maintenance technician whom worked on tanks. The examiner noted the Veteran was exposed to artillery, explosions, Howitzers, and engine noise without the use of hearing protection, during his 18 months of service in Vietnam. The examiner opined that the Veteran’s current tinnitus was a symptom associated with his current hearing loss. The examiner noted that the Veteran’s audiogram revealed normal hearing at separation from service. The examiner concluded that there was no direct evidence of tinnitus in the service treatment records. The June 2013 VA opinion is inadequate to adjudicate the claim. In this regard, the examiner failed to acknowledge the lay assertions of record regarding the Veteran’s in-service noise exposure and ringing in his ears since service. Such statements are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, although the Veteran’s service treatment records are silent for any complaints of, treatment for, or a diagnosis of tinnitus; the Board cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). Accordingly, the June 2013 VA opinion is of no probative value. In sum, the Board finds that the evidence of record supports a grant of service connection for bilateral tinnitus. The clinical evidence of record establishes that the Veteran has a current diagnosis of bilateral tinnitus. Moreover, the Board finds that the Veteran’s report of military noise exposure is consistent with the circumstances of his service. Tinnitus is a subjective sensation, which lay evidence is competent to describe, to include the time of onset. In addition, the Veteran has presented credible written statements regarding his in-service incurrence of noise exposure and tinnitus. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence – Legal Criteria Generally, a claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed about the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (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 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for squamous cell carcinoma. The Veteran’s claim of entitlement to service connection for squamous cell carcinoma was initially denied by the RO in a March 2008 rating decision; he did not appeal the decision. Evidence considered at the time of the rating decision consisted of service treatment records and private treatment records dated February 2006 through February 2008. The RO concluded that service connection for skin cancer (squamous cell carcinoma) was not warranted because the evidence failed to show that the Veteran had a chronic current disability that was related to service. The Veteran was notified of the decision and his appellate rights but did not appeal. In December 2012, the Veteran submitted a statement requesting that the claim of entitlement to service connection for squamous cell carcinoma be reopened. In the January 2014 decision on appeal, the RO declined to reopen the issue of entitlement to service connection for squamous cell carcinoma. Notwithstanding the RO’s actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence received since the March 2008 rating decision includes statements from the Veteran indicating that he spent years during service, to include Vietnam, working in the hot sun, which resulted in multiple sunburns for which he sought treatment for, and ultimately caused his current squamous cell carcinoma. In addition, private treatment records dated 2011 through 2013 from T.L., M.D., demonstrate ongoing complaints, treatment for, and diagnoses of squamous cell carcinoma on the right forearm. Further, VA outpatient treatment records dated January 2011 to July 2013 note diagnoses of squamous cell carcinoma. The assertion of years of serving in the hot sun, to include in Vietnam, that resulted in multiple sunburns for which the Veteran reportedly sought treatment for, and documentation of treatment for squamous cell carcinoma of the right forearm from 2011 through 2013, suggest a possible relationship between his current chronic right forearm squamous cell carcinoma and active service. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim is in order. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss disability is related to his active service. In this regard, he asserts that he was exposed to artillery, explosions, and engine noise without the use of hearing protection, during his 18 months of service in Vietnam. The Veteran further asserts that he was exposed to engine noise from tanks due to his job as a maintenance repairman throughout his six years of active service. Service treatment records are negative for complaints of, treatment for, or a diagnosis of a hearing disability. The Veteran underwent a VA examination in June 2013, during which he reported a worsening of hearing since active service. Upon examination and review of the record, the examiner diagnosed bilateral sensorineural hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was “less likely” caused by or a result of active service. In providing this opinion, the examiner noted that the service treatment records did not demonstrate a threshold shift when comparing the induction examination to the separation examination. The examiner indicated that there was no evidence to support a finding that the Veteran’s current hearing loss began during active service, and therefore, his current bilateral hearing loss disability was not the result of military noise exposure. The June 2013 VA examiner’s opinion is inadequate to adjudicate the claim, as the examiner failed to consider the Veteran’s assertions, that his bilateral hearing loss worsened since active service. Moreover, the examiner failed to provide any rationale for the opinion offered. Therefore, the issue must be remanded for an adequate VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for ED as secondary to service-connected disabilities, to include medications prescribed. The Veteran contends that his current ED disorder is secondary to his service-connected diabetes mellitus, type II disability, including medications prescribed for these disorders. In this regard, the record reflects that the Veteran is prescribed several medications for his service-connected diabetes mellitus, type II, lymphoma, and peripheral neuropathy of the bilateral upper and lower extremity disabilities. Post-service treatment records include a June 2013 VA examination, which notes a diagnosis of ED. The examiner indicated that the Veteran’s current ED was not caused by his service-connected DM, as ED was noted in 2003 and his diabetes mellitus, type II diagnosis was noted in 2011. The examiner concluded that the etiology of the Veteran’s current ED was multifactorial. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2018). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. The June 2013 VA examiner’s opinion is inadequate to adjudicate the claim, as the examiner noted a current diagnosis of ED, however, he failed to provide an opinion as to the etiology of the disorder. Further, the examiner did not consider whether the current ED was aggravated by the service-connected diabetes disability. In addition, the examiner failed to address the medications prescribed for the service-connected diabetes mellitus, type II, lymphoma, and peripheral neuropathy of the bilateral upper and lower extremity disabilities. Accordingly, another medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to service connection for squamous cell carcinoma. Additional development is necessary prior to the adjudication of this claim. Specifically, another VA opinion is necessary, for the reasons discussed below. At the outset, the Board notes that the Veteran is in receipt of service-connection for large cell lymphoma and mycosis fungoides. Post-service treatment records demonstrate diagnoses of squamous cell carcinoma in February 2006 and December 2011 through 2013. The most recent September 2018 VA examination report indicates diagnoses of large cell lymphoma in September 2014, mycosis fungoides in April 2017, and squamous cell carcinoma in December 2011. Clarification is necessary to determine whether the Veteran’s current squamous cell carcinoma is an early manifestation of the service-connected large cell lymphoma and mycosis fungoides disability, or a separate and distinct disability. Accordingly, another medical opinion is necessary to make a determination in this case. See Id. In addition, development to obtain any outstanding medical records pertinent to the Veteran’s claim should be completed. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the bilateral hearing loss present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current bilateral hearing loss disorder is etiologically related to the Veteran’s active service? In providing the opinions, the examiner must discuss the theory of delayed or latent onset of hearing loss, as well as the Veteran’s lay statements regarding his noise exposure while serving as a maintenance technician for 18 months in Vietnam, where he was exposed to loud engines, artillery, explosions, and engine noise without the use of hearing protection. The examiner must also comment on the Veteran’s statements regarding his bilateral hearing loss symptoms, to include that they worsened since active service. For purposes of the opinions, the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Obtain a medical opinion from an appropriate VA examiner to determine the etiology of the Veteran’s current ED. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following review of the record, the physician should state a medical opinion with respect to ED present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current ED disorder was caused or permanently worsened by the service-connected diabetes mellitus, type II disability, to include medications prescribed for the service-connected diabetes mellitus, type II, lymphoma, and peripheral neuropathy of the bilateral upper and lower extremity disabilities. If the physician believes that a ED disorder was permanently worsened by a service-connected disorder(s), to include medication prescribed for the service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 4. Obtain a medical opinion from an appropriate VA examiner to determine the etiology of the Veteran’s current squamous cell carcinoma. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following review of the record, the physician should state a medical opinion with respect to the squamous cell carcinoma present during the period of the claim. The examiner must address the following: Is the current squamous cell carcinoma an early manifestation of the service-connected large cell lymphoma and mycosis fungoides disability? If the squamous cell carcinoma is not an early manifestation of the service-connected lymphoma and mycosis fungoides disability, is it at least as likely as not (i.e., at least 50 percent probable) that the squamous cell carcinoma disorder is etiologically related to the Veteran’s active service, to include his presumed exposure to Agent Orange? In providing the requested opinions, the examiner must consider the post-service medical evidence of record, which demonstrates diagnoses of squamous cell carcinoma in February 2006 and December 2011, as well as diagnoses of large cell lymphoma in September 2014, and mycosis fungoides in April 2017. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 5. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel