Citation Nr: 20002135 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 19-22 781 DATE: January 9, 2020 ORDER As new and material evidence has not been received, the petition to reopen a previously denied claim for service connection for bilateral hearing loss is denied. As new and material evidence has been received, the petition to reopen a previously denied claim for entitlement to service connection for tinnitus is granted. As new and material evidence has been received, the petition to reopen a previously denied claim for entitlement to service connection for bladder cancer is granted. Entitlement to service connection of tinnitus is granted. REMANDED Entitlement to service connection for bladder cancer is remanded. Entitlement to service connection for residual leaking from stomach as secondary to bladder cancer is remanded. FINDINGS OF FACT 1. In a November 2014 rating decision, the RO denied the claim for service connection for bilateral hearing loss because the evidence failed to demonstrate a medical nexus to in-service acoustic trauma or manifestation to a compensable degree within a year of separation. The Veteran did not appeal, and new and material evidence was not received within one year of notice of the decision. 2. Evidence added to the record since the November 2014 rating decision is cumulative or redundant of the evidence of record at the time of the decision and does not raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. In a November 2014 rating decision, the RO denied the claim for service connection for tinnitus because the evidence failed to demonstrate medical nexus to in-service acoustic trauma or manifestation to a compensable degree within a year of separation. The Veteran did not appeal, and new and material evidence was not received within one year of notice of the decision. 4. Evidence added to the record since the November 2014 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 5. In a November 2014 rating decision, the RO denied the claim for service connection for bladder cancer because the evidence failed to demonstrate disease or injury incurred during service. The Veteran did not appeal, and new and material evidence was not received within one year of notice of the decision. 6. Evidence added to the record since the November 2014 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for bladder cancer. 7. It is at least as likely as not that the Veteran’s tinnitus had onset during active service. CONCLUSIONS OF LAW 1. The criteria for to reopen a previously denied claim for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria to reopen a previously denied claim for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria to reopen a previously denied claim for entitlement to service connection for bladder cancer have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to February 1969. New and Material Evidence Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S. C. § 5108. 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. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 1. The petition to reopen a previously denied claim for service connection for bilateral hearing loss In a November 2014 rating decision, the RO denied the claim for service connection for bilateral hearing loss based on lack of in-service disease or injury and based on lack of evidence of chronic undiagnosed illness to a compensable degree. The Veteran did not appeal the decision and no new and material evidence was received within a year of that decision. Thus, the November 2014 decision became final. 38 C.F.R. § 20.1103 (2014). In December 2017, the Veteran filed a claim to reopen his previously denied claim for service connection for bilateral hearing loss. After a review the record, the Board finds that new and material has not been submitted to reopen the previously denied claim for service connection for bilateral hearing loss disability and tinnitus. At the time of the November 2014 rating decision, the evidence of record included service treatment records, an August 2014 VA audiology examination report, and statements from the Veteran. Although the evidence showed bilateral hearing loss disability and in-service acoustic trauma, the VA examiner concluded the Veteran’s bilateral hearing loss is less likely than not a result of military service, to include in-service acoustic trauma. The Veteran’s claim was denied because the evidence failed to show that either disability was manifested in service or within the initial post separation year, or that either disability is attributable to service. Evidence associated with the record since the November 2014 rating decision includes VA treatment records and statements from the Veteran. These additional evidentiary submissions do not cure any prior evidentiary defect. The medical evidence does not link the condition to service. The Veteran’s contention that his bilateral hearing loss is related to acoustic trauma in service was previously considered at the time of the prior denial. Thus, this information is merely cumulative of information previously of record. The evidence is not new and essentially duplicative of evidence previously before VA decision makers at the time of the last final adjudication. Therefore, new and material evidence to reopen the previously disallowed claim for bilateral hearing loss has not been submitted. Accordingly, the petition to reopen this claim is denied. 2. The petition to reopen a previously denied claim for entitlement to service connection for tinnitus In the November 2014 rating decision, the RO denied the claims for service connection for tinnitus based on lack of in-service disease or injury and based on lack of evidence of chronic undiagnosed illness to a compensable degree. The Veteran did not appeal the decision and no new and material evidence was received within a year of that decision. Thus, the November 2014 decision became final. 38 C.F.R. § 20.1103 (2014). In December 2017, the Veteran filed a claim to reopen his previously denied claim for service connection for tinnitus. After review of the pertinent probative evidence of record, the Board finds that new and material evidence has been submitted to reopen the claim. The additional evidence associated with claims folder includes the Veteran’s lay statements regarding his continuity of tinnitus symptoms since his period of service. See December 2017 statement in support of the case. Thus, after review of record, the Board finds that new and material evidence has been received to reopen the claim of service connection for tinnitus. 3. The petition to reopen a previously denied claim for entitlement to service connection for bladder cancer In the November 2014 rating decision, the RO denied the claims for service connection for a bladder cancer based on lack of in-service disease or injury and based on lack of evidence of chronic undiagnosed illness to a compensable degree. The Veteran did not appeal the decision and no new and material evidence was received within a year of that decision. Thus, the November 2014 decision became final. 38 C.F.R. § 20.1103 (2014). In December 2017, the Veteran filed a claim to reopen his previously denied claim for service connection for bladder cancer. After review of the pertinent probative evidence of record, the Board finds that new and material evidence has been submitted to reopen the claim. The additional evidence associated with claims folder includes the Veteran’s lay statements regarding his alleged exposure to herbicide agents, including Agent Orange. The Veteran reports that he was stationed near the Demilitarized Zone (DMZ) while he served in Korea. He further reports that his duties as military police placed him near and along the base perimeter, and the perimeter of the base was bare and there was no vegetation. See February 2018 statement in support of the case. Thus, after review of record, the Board finds that new and material evidence has been received to reopen the claim of service connection for bladder cancer. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 4. Entitlement to service connection for tinnitus The Veteran seeks service connection of tinnitus. The Board finds the claim should be granted. The Veteran has a present diagnosis of tinnitus. In his December 2017 statement, which he submitted with his claim to reopen the previously denied claim of tinnitus, the Veteran stated, “I have had tinnitus since my active duty military service.” A veteran is competent to testify that he experienced an audible sound in his ears in service, and that he has experienced this sound in his ears since that time. The Veteran is also competent to testify to the continuity of his ringing in the ears since his discharge from service. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Because the Veteran is competent to provide that diagnosis and history of continuity, the Board is satisfied that the record supports a finding that the Veteran’s tinnitus was incurred in active military service. As such, service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for bladder cancer 2. Entitlement to service connection for residual leaking from stomach as secondary to bladder cancer The Veteran asserts that his bladder cancer is due to herbicide agent exposure during his service in Korea during the Vietnam Era. Bladder cancer is not recognized by VA as being presumptively associated with exposure to herbicide agents. 38 C.F.R. § 3.309 (e). Thus, service connection is not warranted on a presumptive basis for a disability associated with herbicide agent exposure. However, the availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s personal records confirm that his MOS was military police and that he served in Korea assigned to Battery D, 4th Battalion (HERC), 44th Artillery from the period from November 1967 to February 1969. The Veteran reports that he was served near the Korean DMZ, and his duties placed him along the base perimeter, which was bare and had no vegetation. The Board finds that additional development is required to determine whether the Veteran’s unit served near the Korean DMZ during his period of service, thereby triggering a presumption of his in-service herbicide agent exposure. A research request should be submitted to the Joint Services Records Research Center (JSRRC) to determine whether his unit was present on or near the Korean DMZ during the Veteran’s period of service. Efforts should also be undertaken to attempt to verify the Veteran’s reported exposure to herbicide on the base perimeter where he was stationed in Korea. Thus, if development verifies exposure to an herbicide agent, then the Veteran must be afforded a VA examination to determine whether his bladder cancer and associated complications are etiologically related to active service, to include herbicide agent exposure therein. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Contact the JRSSC or any other appropriate federal records repository and request that research be undertaken to determine whether the Veteran’s unit, Battery D, 4th Battalion (HERC), 44th Artillery from the period from November 1967 to February 1969, was near or in the DMZ, or whether herbicide agents were used on the base perimeter where his unit was stationed in Korea. Please provide all findings in a detailed memorandum. If there is insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure. 3. If and only if exposure to an herbicide agent is verified, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bladder cancer. The examiner must opine as to whether the Veteran’s enlarged prostate is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, including exposure to herbicide agents therein. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.