Citation Nr: 20016891 Decision Date: 03/04/20 Archive Date: 03/04/20 DOCKET NO. 19-02 522 DATE: March 4, 2020 ORDER The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened; to that limited extent, the appeal of that issue is granted. REMANDED Entitlement to a compensable rating for prostate cancer from April 1, 2017 is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for cirrhosis of the liver is remanded. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. By a decision entered in October 1980, a Department of Veterans Affairs (VA) Regional Office (RO) disallowed the Veteran’s claim for service connection for bilateral hearing loss; no appeal was filed, and no new and material evidence was received within the appeal period. 2. The evidence received since the October 1980 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1980 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen the previously denied claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1969 to June 1971, to include service in Vietnam from July 1970 to June 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2015 and April 2017 rating decisions issued by a VARO. In the April 2017 rating decision, the RO granted service connection and a zero (0) percent (noncompensable) rating for prostate cancer, effective February 21, 2017. In November 2018, while the present appeal was pending, the RO increased the rating for residuals of prostate cancer to 100 percent, effective February 21, 2017, with a noncompensable evaluation assigned from April 1, 2017. The application to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1103 (2018). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. “New” evidence is defined as 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). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the RO initially denied service connection for left ear hearing loss in a September 1978 rating decision. In reaching its determination, the RO noted that a disability was not shown by the evidence of record. The Veteran filed an application to reopen his claim in August 1980. In an October 1980 rating decision, the RO disallowed service connection for bilateral hearing loss, noting that his hearing was within normal limits on VA examination. VA received no appeal or new and material evidence prior to the expiration of the one-year appeal period. As such, the October 1980 rating decision became final. At that time, the Veteran’s service treatment records and an August 1980 VA examination report were of record. Since the time of the last final rating decision in October 1980, additional relevant evidence, to include VA treatment records and a February 2015 VA examination report documenting bilateral sensorineural hearing loss, has been added to the claims file. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). The claim for service connection for bilateral hearing loss is reopened. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. 1. An initial compensable rating for prostate cancer from April 1, 2017 In December 2019, the Veteran reported that he underwent surgery at VA in October 2019 to repair a blockage in his urethra caused by treatment for prostate cancer. Because his report suggests a worsening of his condition, a new examination is warranted. Records of the October 2019 treatment must also be obtained. 2. Entitlement to service connection for hepatitis C is remanded. 3. Entitlement to service connection for cirrhosis of the liver is remanded. The Veteran seeks to establish service connection for hepatitis C, which he contends is due to getting tattoos in service. See February 2016 Statement in Support of Claim. The Veteran’s service treatment records show that he entered service without any tattoos. On separation examination in March 1971, tattoos were noted. The Board finds no reason to question the Veteran’s report of getting tattoos while in service. The Veteran’s post-service treatment records reflect the presence of and treatment for hepatitis C. A February 2015 VA examiner opined that the Veteran’s hepatitis C was not related to in-service intranasal cocaine use, but did not specifically comment on the likelihood of a relationship between the Veteran’s hepatitis C and in-service tattoos. As such, another examination is warranted. Regarding the claim for service connection for cirrhosis of the liver, the Veteran has contended that his hepatitis C has been a factor in developing cirrhosis. See February 2016 Statement in Support of Claim; Harris v. Derwinski, 1 Vet. App. 180 (1991); Anglin v. West, 11 Vet. App. 361, 367 (1998). As the two claims are inextricably intertwined, the cirrhosis issue will be remanded as well. 4. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is remanded. 5. Entitlement to service connection for asthma is remanded. 6. Entitlement to service connection for hypertension is remanded. The Veteran is presumed to have been exposed to herbicide agents as a result of his service in Vietnam. Recent information from the National Academy of Sciences raises the issue of a possible association between hypertension and such exposure. See National Academy of Sciences Report: Veterans and Agent Orange: Update 11 (2018). Because no medical opinion on the issue has thus far been obtained, additional development is warranted. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran maintains that his heart disability is related to his hypertension. He also seems to suggest that his asthma is related to his heart disability. See February 2016 Statement in Support of Claim. As the heart and asthma claims are inextricably intertwined with the hypertension claim, those issues will be remanded as well.  7. Entitlement to service connection for bilateral hearing loss is remanded. A February 2015 VA examiner reviewed the record, interviewed the Veteran, conducted audiometric testing, and opined that it was unlikely that the Veteran’s bilateral hearing loss was caused by or a result of an event in service. Upon review, the Board finds the VA examiner’s opinion insufficient. Specifically, it does not appear that the examiner considered a February 1970 service treatment record noting a complaint of loss of hearing. An addendum opinion is warranted. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to have the Veteran scheduled for an examination for residuals of prostate cancer. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. In so doing, the examiner should specifically comment on any procedure the Veteran may have undergone in October 2019 relating to his urethra. 3. Also arrange to have the Veteran scheduled for a VA examination for hepatitis. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s hepatitis C had its onset in, or is otherwise attributable to, the Veteran’s period of active service, to particularly include as a result of any tattoos he obtained during service. A complete medical rationale for all opinions expressed must be provided. 4. Arrange, in addition, to have the Veteran scheduled for a VA examination for hypertension. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that hypertension had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include as a result of his presumed in-service exposure to herbicide agents in Vietnam. In so doing, the examiner should consider recent information from the National Academy of Sciences to the effect that there is sufficient evidence of an association between hypertension and exposure to herbicides. See National Academy of Sciences Report: Veterans and Agent Orange: Update 11 (2018). A complete medical rationale for all opinions expressed must be provided. 5. Further arrange to have the Veteran scheduled for a VA audiology examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s hearing loss had its onset in, or is otherwise attributable to, his period of active service. In so doing, the examiner should comment on the February 1970 service treatment record noting a complaint of loss of hearing. A complete medical rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include, if warranted, obtaining additional medical nexus opinions with respect to the Veteran’s cirrhosis, heart, and/or asthma), the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental   statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.