Citation Nr: 1807216 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-43 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for throat cancer. 2. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for bilateral hearing loss, and if so, whether service connection is warranted. 3. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for tinnitus, and if so, whether service connection is warranted. 4. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a back disability, and if so, whether service connection is warranted. 5. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for skin cancer, and if so, whether service connection is warranted. 6. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. 7. Entitlement to service connection for a heart condition. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and J.W. ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran had active military service from June 1964 to May 1967. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in December 2017; the hearing transcript has been associated with the file and has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The issues of entitlement to service connection for a heart disability and whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a back disability, skin cancer, and an acquired psychiatric condition, and if so, whether service connection is warranted are being remanded. They are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's asbestos exposure in service caused his cancer of the larynx. 2. In a July 2009 decision, the RO denied the Veteran's claim of entitlement to service connection for hearing loss and tinnitus. 3. Evidence submitted since the June 2008 decision relates to an unestablished fact necessary to substantiate the claim. 4. The Veteran's bilateral hearing loss was caused by noise exposure in service. 5. The Veteran's tinnitus onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for cancer of the larynx have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). 2. The July 2009 rating decision denying service connection for hearing loss and tinnitus is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 20.1103 (2017). 3. New and material evidence sufficient to reopen the claim of entitlement to service connection for hearing loss and tinnitus has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The diseases presumptively associated with herbicide exposure are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C. § 1113(a); 38 C.F.R. § 3.307(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii); 38 U.S.C. § 1116(f). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Throat Cancer Medical records show that the Veteran has been diagnosed with cancer of the larynx. In a September 2017 statement to the VA the Veteran argued that the cancer may have been caused by his exposure to asbestos in service. Specifically, he stated that while aboard the USS Porterfield he was exposed to asbestos dust falling from overhead pipe wrapping. In an October 2017 statement he further explained that when the ship hit rough seas he could see dust from the asbestos wrapping on the pipes falling into his food, bedding, and air. The Board notes that the Veteran's military occupational specialty was as a cook and he has also testified that he was a rescue swimmer. In addition to the USS Porterfield, he served aboard two other Navy ships between October 1965 and May 1967. In October 2017, a VA opinion was obtained as to whether the Veteran's cancer of the larynx may have been caused by asbestos exposure. The VA nurse practitioner who reviewed the Veteran's record opined that it is less likely than not that the Veteran's laryngeal cancer was caused by in-service asbestos exposure. She explained that there is no data to suggest that casual exposure to asbestos causes laryngeal cancer, although there is data to support that occupational exposure is implicated in laryngeal cancer. She cited the National Cancer Institute's information on asbestos exposure that states that everyone is exposed to asbestosis at some time in their life but that people who become ill are usually those who are exposed on a regular basis, most often in a job where they work directly with the material or through substantial environmental contact. The VA nurse practitioner gave as an example of someone with substantial exposure to asbestos a person whose job was to repair asbestos-wrapped pipes. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases; however, VA issued a circular on asbestos-related diseases in 1998 which provided guidelines for considering asbestos compensation claims and which are included in the VA Adjudication Procedure Manual (Manual). See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 3. The Manual provides that veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. Claims based on exposure to asbestos require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion as described in M21-1, IV.ii.1.I.3.f, and a diagnosed disability that has been associated with in-service asbestos exposure. The Manual also provides a table to determine the probability of asbestos exposure by military occupational specialty. The Manual further states that, if an military occupational specialty is listed as minimal, probable, or highly probable in the table, concede asbestos exposure for purposes of scheduling an examination. Each claim based on asbestos exposure must be adjudicated on its own merit with military occupational specialty being one consideration in determining whether there was an exposure event. See M21-1, IV.ii.1.I.3.d. The military occupational specialty of ships cook is listed in the Manual as having minimal asbestos exposure. See M21-1, IV.ii.1.I.3.c. The Board further finds the Veteran's testimony to be both competent and credible evidence of in-service asbestos exposure as seeing pipe insulation is possible with lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's reports are consistent with the nature of his service, and the claims file contains no evidence which tends to refute the Veteran's contention. Therefore, based on the forgoing, and in affording the Veteran the benefit of the doubt, the Board finds that the Veteran was exposed to asbestos during service. Information from the National Cancer Institute submitted by the Veteran cites to the International Agency for Research on Cancer's work stating that there is sufficient evidence that asbestos exposure causes, among other diseases, cancers of larynx. The Board acknowledges the opinion of the VA nurse practitioner who opined that the Veteran's laryngeal cancer is less likely than not caused by his asbestos exposure, but finds her opinion has little probative value as the rationale for her opinion focuses only on the Veteran's military occupational specialty and the fact that other occupational specialties would have likely resulted in much more exposure to asbestos. The Board agrees that may be true; however, that fact does not change the Veteran's description of consistent environmental exposure to asbestos during his year and a half aboard Navy ships between 1965 and 1967. As the Board finds that the Veteran had asbestos exposure in service and has laryngeal cancer, which medical evidence supports is caused by asbestos exposure, the Board finds that giving him the benefit of the doubt, service connection should be granted. Hearing Loss and Tinnitus The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (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). The RO denied service connection for bilateral hearing loss and tinnitus in a July 2009 rating decision. The Veteran did not file a timely notice of disagreement and no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the July 2009 decision. Therefore, the July 2009 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The basis of the prior final denial of service connection for hearing loss was the RO's finding that the Veteran did not have bilateral hearing loss for VA purposes and the basis for the prior final denial of service connection for tinnitus was the RO's finding that the Veteran's tinnitus was not incurred in or caused by service. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the July 2009 rating decision that addresses this basis. New evidence added to the record includes a May 2016 VA hearing loss examination showing the Veteran has bilateral hearing loss for VA purposes. Also added to the record are the Veteran's statements, including on his November 2014 substantive appeal and at his December 2017 Board hearing, that he first experienced ringing in his ears in service that continues to present. Thus, as new and material evidence has been submitted, the Board finds that the Veteran's claims for service connection for bilateral hearing loss and tinnitus should be reopened. The Board finds that the Veteran will not be prejudiced by the agency of original jurisdiction's failure to consider the claim on the merits, and therefore will proceed with adjudication on the merits. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The audiologist who performed the Veteran's May 2016 VA examination noted the Veteran's separation examination included only a whisper test, which is an unreliable measure of hearing sensitivity. The audiologist further noted that the Veteran's service medical records suggest exposure to loud noise in service. The examiner opined that it is at least as likely as not that the Veteran's bilateral hearing loss was caused by service. Therefore, as a preponderance of the evidence supports service connection for bilateral hearing loss, service connection should be granted. The May 2016 VA examiner indicated that the Veteran denied having tinnitus at the examination. However, in statements and testimony to the VA the Veteran has reported that he was exposed to loud noise in service, including ship gunfire, and has had ringing in his ears since that noise exposure. Therefore, giving the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus should be granted. ORDER Service connection for cancer of the larynx is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. New and material evidence having been submitted the petition to reopen the claim of service connection for hearing loss and tinnitus is granted. Service connection for bilateral hearing loss is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. Service connection for tinnitus is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is required to ensure there is a complete record upon which to decide the Veteran's remaining claims. At his July 2012 VA mental health examination the Veteran reported that he has been in receipt of Social Security disability benefits since 2004 due to his back disability. When VA is put on notice of the existence of potentially relevant Social Security records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159(c)(2) and (3) (2017); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370- 372 (1992). On remand, those Social Security records, including all adjudications and the underlying records, must be associated with the Veteran's file. The Veteran should also be afforded a new VA mental health examination. The Veteran's VA treatment records reflect a new diagnosis of depression since the July 2012 VA examination. The examiner should opine whether the Veteran's diagnosed depression is at least as likely as not related to his service or his service-connected disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Social Security Administration and obtain a complete copy of any adjudication and the records underlying any adjudication for disability benefits. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 2. Arrange for the Veteran to undergo a VA mental health examination. The examiner should discuss the Veteran's diagnosis of depression shown in his VA treatment records. For all acquired psychiatric conditions diagnosed, the examiner should opine whether it is at least as likely as not that the condition is caused or aggravated by the Veteran's service or his service-connected disabilities. 3. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs