Citation Nr: 1806479 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-21 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for squamous cell carcinoma (SCC) of the right tonsil/oropharynx (also claimed as upper respiratory cancer), as due to herbicide agent exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1971, to include service in the Republic of Vietnam. He is a recipient of two Purple Heart Medals, the Bronze Star Medal, and the Combat Infantryman Badge (CIB). These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2012 (SCC) and March 2014 (hearing loss) decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran submitted Notices of Disagreement in May 2012 (SCC) and March 2014 (hearing loss); Statements of the Case were issued in May 2013 (SCC) and April 2014 (hearing loss); and substantive appeals were received in July 2013 (SCC) and May 2014. The Veteran testified before the undersigned Veterans Law Judge in April 2017; a transcript is of record. The Veteran's claim of service connection for bilateral hearing loss has been developed and adjudicated as both a claim for bilateral neurosensory hearing loss, bilateral and left ear hearing loss. See March 2014 Rating Decision and April 2014. Based on the Veteran's initial claim, his statements, and his hearing testimony, he is clearly seeking service connection for a bilateral ear disability, however diagnosed; thus, the matter is being addressed as characterized as stated on the title page, to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79(2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim). FINDINGS OF FACT 1. An unappealed May 1971 rating decision denied the claim of entitlement to service connection for bilateral hearing loss; evidence added to the record since the May 1971 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss. 2. Bilateral hearing loss disability is attributable to service. 3. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. 4. Squamous cell carcinoma of the right tonsil, also claimed as upper respiratory cancer, is at least as likely as not related to exposure to herbicide agents during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for squamous cell cancer of the right tonsil, also claimed as upper respiratory cancer, have been met. 38 U.S.C.A. § 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104 (b), 7105(c) (West 2014). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). 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 (a) (2017). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a) (2016); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Bilateral Hearing Loss Service connection for bilateral hearing loss was initially denied initially in May 1971. The RO essentially determined that, while the Veteran had mild, bilateral neurosensory hearing loss, organic hearing loss for purposes of service connection by the VA was not shown by the contemporaneous 1971 VA audiological examination. In other words, the Veteran did not have a current hearing loss disability for VA purposes. The Veteran did not appeal the May 1971 decision nor was new and material evidence received within a year of that decision. The May 1971 decision thereby became final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 3.104 (2017). Evidence received since the May 1971 rating decision includes, in pertinent part, a December 2014 VA audiological examination and opinion which reflects that the Veteran has a current bilateral hearing loss disability for VA purposes (see, e.g., 38 C.F.R. § 3.385) that is the result of service. This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate each claim. Accordingly, reopening of the claim is in order. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. " Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic disabilities, including organic disease of the nervous system and malignant tumors, may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition if a veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain diseases, including respiratory cancers of the lung, bronchus, larynx, and trachea are presumptively related to exposure to herbicides under 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307 (d), 3.309(e), barring any clear and unmistakable evidence to the contrary. Hearing Loss The Veteran contends that his bilateral hearing loss is the direct result of acoustic trauma sustained during combat service in Vietnam. He has consistently reported that he experienced hearing loss immediately after being wounded in an explosion that caused injury to the entire left side of his body. He has endorsed decreased hearing in both ears since that time. Having carefully considered the evidence of record, and affording this combat Veteran all benefit of any doubt, the Board finds that service connection for bilateral hearing loss is warranted. As an initial matter, the Veteran has a current bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. See December 2014 VA Audiological Examination. As noted, the Veteran served in combat and received two Purple Heart medals. His history of acoustic trauma is consistent with the time, place, and circumstances of his service, and the Board fully accepts that he sustained the alleged acoustic injury as the Veteran engaged in active combat with enemy in active service with the US Army during a period of war. 38 U.S.C.A. §1154 (a), (b) (2017). Notably, service records confirm that the Veteran sustained multiple combat/fragment wounds to his upper and lower extremities as the result of an explosion. Service treatment record reflect that the Veteran endorsed hearing loss on the separation Report of Medical History; significantly, he was diagnosed with partial left ear deafness on the October 1970 Report of Medical Examination. Objective audiometer testing also revealed 40 decibels of hearing loss at the 4000 hertz thresholds in both ears (30 decibels of hearing in the right ear and 35 decibels in the left ear on repeat audio testing). The Veteran separated from active duty service in January 1971. Thereafter, an April 1971 VA examination conducted in conjunction with his initial claim for hearing loss reflected that the Veteran complained of decreased hearing after having been exposed to a grenade explosion in-service. Although the Veteran did not meet VA's hearing loss criteria at that time, he was diagnosed with mild, bilateral neurosensory hearing loss. In addition to the foregoing, the Veteran has specifically endorsed a continuity of bilateral hearing loss symptomatology during and since service. See NOD and VA Form 9 ("My hearing loss was immediately notice by me after I was wounded in Vietnam in March 1970...I was within 5 to 10 feet of the land mine when it exploded...my hearing on my left side was never the same and over time I lost hearing on my right side too."). The Veteran is competent to report as to his chronic hearing loss symptoms, both in-service and following service, and the Board has no to reason to doubt the credibility of such statements as they have been consistently reported throughout the record. In short, the most competent and probative evidence of record reflects that the Veteran sustained acoustic trauma in-service; that he complained of, and was diagnosed with partial left ear deafness, along with objective findings of right ear hearing loss on separation examination; that he was diagnosed with mild, bilateral neurosensory hearing loss within months of separation from service; and that he has experienced ongoing hearing loss symptomatology since service. Based on this evidence, alone, the Board finds that service connection is warranted. See, e.g., 38 C.F.R. § 3.303(b); see also Walker, supra. The Board also notes that the above finding is consistent with the December 2014 VA opinion which found that it was at least as likely as not that the Veteran's hearing loss was caused by or a result of service. (Note: a March 2014 negative VA opinion is of no probative value as it was based solely on the Veteran not meeting the criteria for hearing loss during service.). In view of the totality of the evidence, including the Veteran's documented combat experience in service and likely associated in-service noise exposure, and his credible statements, Board finds that the probative medical evidence of record is at least in equipoise as to the question of service connection and that his bilateral hearing loss is as likely as not due to noise exposure during his period of active service. Under such circumstances, with the resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Squamous Cell Carcinoma of the Right Tonsil The Veteran asserts that his squamous cell carcinoma of the right tonsil, also claimed as upper respiratory cancer, is due in-service herbicide agent exposure. At the outset, the Veteran's personnel records confirm that he served in Vietnam from February to April 1970. Therefore, exposure to Agent Orange in service is conceded. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307 (d). Nevertheless, his diagnosed squamous cell cancer of the tonsil is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C.A. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). However, the Veteran may still be entitled to service connection for this disease on a direct basis if the evidence establishes that it is related to the herbicide agent exposure. In this case, there are no findings of tonsil cancer in-service or within one year of separation from service and the Veteran does not contend otherwise. Rather, private oncology treatment records reflect that the Veteran was diagnosed with SCC of the right tonsil in 2009. In a June 2013 letter, the Veteran's oncologist and treating physician, Dr. S.E., explained that the Veteran had been diagnosed with "T2 (stage IVa) N2b squamous cell carcinoma of the right tonsil as an upper respiratory cancer." Dr. S.E. indicated that he was aware of the Veteran's Agent Orange exposure and of VA's denial of service connection on the basis that the primary site of his throat cancer was in the tonsil and not the larynx, lung, bronchus, or trachea. He stated, "I am glad to explain the clinical condition that this was a locally advanced, squamous cell carcinoma of the upper aerodigestive tract, which is commonly called the upper respiratory system." During his hearing before the undersigned, the Veteran competently testified that his oncologist and treating physician, Dr. S.E., told him that his cancer was related to Agent Orange exposure because he had no other risk factors and because the larynx and pharynx were essentially wrapped around each other and shared the same tissue. The Veteran's representative cited to Gray's Anatomy, which described the larynx as forming part of the boundary of the pharynx. The examiner further testified that Dr. S.E. was a specialist in the area of cancer and that he had provided a copy of Dr. S.E.'s curriculum vitae as well as a copy of his medical nexus opinion linking the upper respiratory cancer to Agent Orange exposure. The Veteran included copies of articles from various medical websites which showed that the upper respiratory tract consisted of the nasopharynx, oropharynx, laryngopharynx, and the larynx. In a March 2017 statement, Dr. S.E. stated that the biopsy of the Veteran's right tonsil mass was considered to have been a primary from the upper respiratory tract/aerodigestive tract, as defined in the scientific literature. He then opined that the Veteran had been exposed to Agent Orange and that such exposure caused his squamous cell carcinoma. Dr. S.E. stated that the SCC had originated in the upper respiratory tract and infiltrated the tonsil and the local structures of the oropharynx and metastasized to the lymph nodes in the neck and that the carcinoma of this area/anatomy was associated with Agent Orange exposure. Although he did not directly cite to the medical literature, he stated that an association of developing oropharyngeal cancers and Agent Orange exposure had been published. VA is statutorily permitted, but not required, to accept a report provided by a private physician as sufficient to grant a claim without confirmation by a VA examination, if the private physician's report is sufficiently complete to be adequate for the purpose of adjudicating the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this case, the Board finds Dr. S.E.'s statements/opinions to be highly probative as to the issue of nexus because he is a specialist in the area of oncology, and, as the Veteran's treating physician, he is fully informed of the Veteran's medical history and risk factors, to include herbicide agent exposure, and the genesis of his particular cancer. He also provided a fully articulated rationale and the opinion was supported by a reasoned analysis. Notably, there are no medical opinions of record to the contrary. In weighing the favorable medical opinion, and the conceded exposure to Agent Orange in service, the Board finds that the evidence is relatively equally-balanced in terms of whether the Veteran has squamous cell carcinoma of the right tonsil related to his military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for squamous cell carcinoma of the right tonsil is warranted. (CONTINUED ON NEXT PAGE) ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for squamous cell carcinoma of the right tonsil, also claimed as upper respiratory cancer, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs