Citation Nr: 20027644 Decision Date: 04/20/20 Archive Date: 04/20/20 DOCKET NO. 16-12 034 DATE: April 20, 2020 ORDER New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a low back disability is denied. New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for hepatitis C is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for tuberculosis is denied. REMANDED Entitlement to a rating in excess of 30 percent for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2008 rating decision denied entitlement to service connection for a low back disability. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. The additional evidence associated with the claims file following the September 2008 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a low back disability, nor does it otherwise raise a reasonable possibility of substantiating his claim. 3. A September 2008 rating decision denied entitlement to service connection for hepatitis C. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 4. The additional evidence associated with the claims file following the September 2008 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for hepatitis C, nor does it otherwise raise a reasonable possibility of substantiating his claim. 5. The Veteran’s prostate cancer did not manifest during service and is not shown to be causally or etiologically related to an in-service event, injury or disease. 6. The Veteran’s tuberculosis did not manifest during service, or within three years after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The September 2008 rating decision, which denied the Veteran’s claim of entitlement to service connection for a low back disability, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The additional evidence received since the September 2008 rating decision is not new and material, and the claim of entitlement to service connection for a low back disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2008 rating decision, which denied the Veteran’s claim of entitlement to service connection for hepatitis C, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 4. The additional evidence received since the September 2008 rating decision is not new and material, and the claim of entitlement to service connection for hepatitis C is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 6. The criteria for service connection for tuberculosis have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1972 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 (low back disability, prostate cancer, tuberculosis, hepatitis C), May 2015 (hearing loss of the right ear), and November 2015 (bilateral hearing loss) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing. The transcript of the hearing is of record. By way of background, in a June 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss. In May 2015, the RO granted the Veteran’s claim for entitlement to service connection for hearing loss of the right ear but denied the claim for entitlement to service connection for hearing loss of the left ear. Then, in a November 2015 rating decision, the RO granted the Veteran’s claim for entitlement to service connection for hearing loss of the left ear with a 30 percent disabling rating for bilateral hearing loss. The Board observes that additional VA medical records were received following the last adjudication by the RO in the September 2016 supplemental statement of the case. In February 2020, the Veteran waived his right to have all new evidence reviewed by the Agency of Original Jurisdiction. See February 2020 Other. Since the February 2020 correspondence, additional VA medical records were received. The Board has reviewed these records and observes that they are duplicative, cumulative, and/or not pertinent to the issues on appeal addressed in the decision below. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a low back disability is denied. 2. New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for hepatitis C is denied. In the September 2008 rating decision, the RO denied the claims of entitlement to service connection for a low back disability and hepatitis C as there was no diagnosis or treatment of a low back disability or hepatitis C in the service treatment records or within the first year of discharge. The Veteran did not appeal that decisions and new and material evidence was not received with regard to either issue within a year of the decision. Accordingly, the September 2008 decision is final. In this case, the Veteran filed his claim to reopen in June 2011. Since the September 2008 rating decision for the low back disability and hepatitis C, VA treatment records, VA examination for hepatitis C, and hearing testimony are associated with the file. The treatment records continue to show that the Veteran has a diagnosis of a low back disability and hepatitis C. See September 2016 CAPRI and September 2009 Medical Treatment Record – Government Facility. In the April 2019 hearing, the Veteran testified that his low back disability manifested as a result of falling off a snowplow in service. The Veteran also attested that his hepatitis C is related to his service as he was sharing needles from doing intravenous drugs such as cocaine and heroin in service. As for the February 2016 VA examination for hepatitis C, the examiner opined that the Veteran’s hepatitis C is less likely than not incurred in or caused by the claimed in-service heroin and cocaine use. The examiner explained that intravenous drug use was not documented in the separation examination except for a marijuana experiment in 1973. The Board concludes that the additional evidence received since the September 2008 rating decision is not new and material because it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim, nor does it raise a reasonable possibility of substantiating his claim when considered by itself or in conjunction with the evidence that was previously of record. The evidence shows that the Veteran has a diagnosis of a low back disability and hepatitis C. This is not new. The Veteran alleged that his hepatitis C and low back disability manifested in service due to an in service event or injury. This is also not new. Although the February 2016 VA examiner’s opinion is new it is not material as the examiner opined that the Veteran’s hepatitis C is less likely than not incurred in or caused by the claimed in-service intravenous drug use. As the Veteran’s statements and the records are not new and material, the Board finds that the additional evidence submitted is either redundant or does not pertain to a reason why the claim was previously denied. Based on the Veteran’s testimony and the medical evidence of record, there is no evidence to qualify as new and material evidence sufficient to reopen his previously denied claim. Thus, the additional evidence submitted since the September 2008 rating decision, when considered by itself and in conjunction with the evidence that was previously of record, is not new and material. There is still no evidence that the Veteran’s low back disability and hepatitis C manifested in service or as a result of service. As new and material evidence has not been received, the claim for service connection for a low back disability and hepatitis C is not reopened. See 38 C.F.R. § 3.156(a). Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for prostate cancer is denied. Having carefully reviewed the evidence of record, the Board finds that the criteria for service connection for prostate cancer are not met. The more persuasive evidence of record shows that prostate cancer is not attributable to service. At the outset, the Board notes that the Veteran has a current diagnosis of prostate cancer. See June 2011 Medical Treatment Record – Government Facility. As such, the first element of service connection is met. As for the second element of service connection, the Board finds that there is no prostate-related in-service event, injury or disease. Specifically, the Veteran was noted to have normal genitourinary system with no complaints of frequent or painful urination in the August 1972 enlistment examination and May 1974 separation examination. See April 2014 STR – Medical. Additionally, in the April 2019 hearing, the Veteran stated that he no longer thought that his prostate cancer is related to service. Transcript p. 15. The Veteran also confirmed that he was not exposed to herbicide agents and did not set foot in Vietnam. Further, the Veteran stated that he did not work with aircrafts and is not sure whether he was exposed to herbicide agents. As the Veteran stated that he was not exposed to herbicide agents directly and is unsure whether he worked with aircrafts and pallets that may have once carried herbicide agents, the Board finds that the records do not support that the Veteran was exposed to herbicide agents. Accordingly, the Board finds that there is no in-service incurrence of a disease or injury. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for prostate cancer but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, there is no evidence establishing prostate cancer occurred in service. Even the Veteran did not allege any specificity as to how his prostate cancer manifested in service or as a result of his service. In fact, the Veteran stated that he cannot affirmatively state that he was exposed to herbicide agents. The Veteran also affirmed that he was never in Vietnam and his Certificate of Release does not reflect any time in foreign land. See June 1977 Certificate of Release or Discharge from Active Duty. As such, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for prostate cancer. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). In sum, the criteria for service connection for prostate cancer have not been met. The Veteran did not assert, and the evidence does not show, that prostate cancer related event, injury, or disease occurred in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. 2. Entitlement to service connection for tuberculosis is denied. For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain “chronic” diseases listed in 38 C.F.R. § 3.309(a) that manifest to a compensable degree within a prescribed time period, which period is three years in the case of active tuberculosis. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of activity on comparative study of x-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by § 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods. 38 C.F.R. § 3.371(a). Here, the Board notes that the Veteran has a positive PPD test, which may indicate that he at one time had tuberculosis. See October 2018 CAPRI. The Board notes, however, that a positive PPD test is merely a laboratory finding, and there is no medical evidence of record showing active tuberculosis at any time in service or post-service, including within the three-year presumptive period. 38 C.F.R. § 3.307(a)(3). The PPD test finding alone is not considered a disability for which service connection may be established. Without diagnosed active tuberculosis at any point during the appeal period, service connection for such may not be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As for the second element of service connection, the Board finds that there is no tuberculosis-related in-service event, injury, or disease. Specifically, a review of the service treatment records shows that the Veteran was noted to have no tuberculosis in the August 1972 enlistment examination and May 1974 separation examination. See April 2014 STR – Medical. Additionally, in the April 2019 hearing, the Veteran attested that he was diagnosed with tuberculosis around 1999, about 25 years after service. Accordingly, the Board finds that there is no in-service incurrence of a disease or injury. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for tuberculosis but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, there is no evidence that the Veteran has tuberculosis and that if he does have tuberculosis there is no evidence establishing tuberculosis occurred in service. As noted above, the service treatment records show that the Veteran was noted to have no tuberculosis in the August 1972 enlistment examination and May 1974 separation examination. See April 2014 STR – Medical. Moreover, even the Veteran attested that he was diagnosed with tuberculosis around 1999, about 25 years after service. As such, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for tuberculosis. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). The Board acknowledges that the Veteran’s representative argued that immunization records might show a positive finding of the Veteran’s tuberculosis. Although the Veteran’s immunization records have not been associated with the file, the records show that the Veteran’s complete medical, dental, and personnel records has been furnished. See April 2019 Military Personnel Record. There are no outstanding records to obtain. As such, the Board finds that a remand is not warranted as the Veteran’s complete records has been furnished and, more importantly, the Veteran conceded that his tuberculosis was diagnosed in 1999, about 25 years after service. The Board finds it significant that the Veteran has never asserted that he was found to have tuberculosis during service, a finding that is supported by the lack of any notation of such on any of his service treatment records, to include at the time of his separation from service. In sum, the criteria for service connection for tuberculosis have not been met. The Veteran did not assert, and the evidence does not show, that tuberculosis related event, injury, or disease occurred in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent for service-connected bilateral hearing loss is remanded. In the April 2019 hearing, the Veteran argued that his October 2018 VA examination was inadequate. Additionally, the Veteran stated that his hearing loss of the right ear worsened since his October 2018 VA examination. Specifically, the Veteran stated that he would have to read lips to understand speech and ask people to repeat themselves. As the Veteran alleged worsening since his last VA examination, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his bilateral hearing loss. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination that addresses the current severity of his service-connected bilateral hearing loss. The impact of his hearing loss on his daily life and ability to gain and maintain employment should be addressed. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.