Citation Nr: 21002886 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-30 465 DATE: January 19, 2021 ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a bilateral hearing loss disability; and if so, whether the claim should be granted. 2. Whether new and material evidence has been received to reopen the claim for service connection for rectal cancer; and if so, whether the claim should be granted. ORDER New and material evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability, and to that limited extent, the appeal is granted. New and material evidence has been received to reopen the claim for service connection for rectal cancer, and to that limited extent, the appeal is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for rectal cancer is remanded. FINDINGS OF FACT 1. In an unappealed September 1993 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. 2. Assuming its credibility, additional evidence received since the September 1993 rating decision, namely the Veteran’s February 2020 Board Hearing testimony; photographs submitted by the Veteran which depict his proximity to an air strip during service; photographs depicting the types of combat equipment the Veteran used as a Mortar man during service; and a January 2016 VA Hearing Loss and Tinnitus Examination, relates to evidence that is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and as such raises a reasonable possibility of substantiating the claim. 3. In an unappealed February 2016 rating decision, the RO denied the Veteran's claim of entitlement to service connection for rectal cancer. 4. Assuming its credibility, additional evidence received since the February 2016 rating decision, namely a February 2017 Intestinal Surgery (Bowel Resection, Colostomy, Ileostomy) Disability Benefits Questionnaire; April 2017, Rectum and Anus Conditions Disability Benefits Questionnaire; October 2019, VA Intestinal Conditions Disability Benefits Examination and Medical Opinion; Correspondence regarding cancer study initiatives (received February 6, 2020); February 2020 Board Hearing testimony; and a March 2020 private nexus opinion, relates to evidence that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate the claim, and as such raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2018). 2. Since the September 2013 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability; therefore, the claim is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2018). 3. The February 2016 rating decision denying service connection for a claim of entitlement to service connection for rectal cancer is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2018). 4. Since the February 2016 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for rectal cancer; therefore, the claim is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in from August 1980 to August 1984. This case comes before the Board of Veterans' Appeals (the Board) from February 2016 and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in February 2020. A transcript of that proceeding has been associated with the claims file. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence and, in August 2020, granted an additional 60-day extension to submit such evidence. See August 4, 2020 Correspondence. Subsequently, in October 2020, the Veteran's representative submitted additional evidence. 38 U.S.C. § 7105(e)(1). The Board notes that since the supplemental statement of the case, this additional evidence has been submitted by the Veteran. As his substantive appeal was filed after February 2013, a waiver of Regional Office review is not required. See 38 U.S.C. § 7105 (e)(1). Consequently, a remand for review of this additional evidence is not necessary. Notwithstanding, as will be discussed below in the Remand section of this decision, these claims are remanded to the AOJ for further development. New and Material Evidence Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38U.S.C.§§5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.§§7105 (c), (d)(3); 38 C.F.R.§20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C.§5108 (2012); 38 C.F.R.§3.156. 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen claim for service connection for a bilateral hearing loss disability. The Veteran's original claim of entitlement for service connection for a bilateral hearing loss disability was denied in a September 1993 rating decision. The reason for the denial was that although medical records confirmed treatment in April 1981 for a boil in the left and January 1983 for an ear infection, the conditions resolved with no residual disability. Additionally, The Veteran’s July 19, 1984 Separation examination showed no evidence of any abnormal hearing. See September 23, 1993 Rating Decision. The Veteran did not file an appeal of the decision or submit new and material evidence within one year of notification. Therefore, that decision became final. 38 U.S.C. § 4005 (c) (West 1991); 38 C.F.R. §§ 3.104, 19.118, 19.153(2018). In December 2015, the Veteran filed a petition to reopen his claim of entitlement to service connection for bilateral hearing loss. See December 10, 2015 VA Form 21-526EZ. In a February 2016 rating decision, the RO reopened the Veteran’s claim of entitlement to service connection for a hearing loss disability and confirmed and continued the denial. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38U.S.C.§§5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. Since the September 1993 rating decision, the record contains the Veteran’s February 2020 Board Hearing testimony examination, photographs submitted by the Veteran which allegedly depict his proximity to an air strip during service, photographs depicting the types of combat equipment the Veteran used as a Mortar man and a January 2016 VA Hearing Loss and Tinnitus Examination. See 38 C.F.R. § 3.385. First, the Veteran’s February 2020 Board Hearing testimony depicts that the Veteran was exposed to hazardous acoustic noise during service as a Mortar man. The Veteran testified that he did not have hearing protection. Photographs of combat equipment and the air strip supplement the Veteran’s testimony. The Veteran further testified that he did experience hearing loss during service. Last, the 2016 VA Hearing loss and Tinnitus examination addresses a nexus to service. The Board finds that evidence is new because the existing evidence was not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Second, this evidence is material because by itself, or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Based on the foregoing, the Board finds that the newly submitted evidence described above, is both new and material. Having submitted new and material evidence, the Veteran's claim is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). Whether new and material evidence has been received to reopen claim for service connection rectal cancer. The Veteran's original claim of entitlement for service connection for a bilateral hearing loss was denied in a February 2016 rating decision. The reason for the denial was that the evidence does not show a currently diagnosed disability of rectal cancer, nor did the evidence show that a malignant tumor developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. See February 8, 2016 Rating Decision. The Veteran did not file an appeal of the decision or submit new and material evidence within one year of notification. Therefore, that decision became final. 38 U.S.C. § 4005 (c) (West 1991); 38 C.F.R. §§ 3.104, 19.118, 19.153(2018). In May 2016, the Veteran filed a supplemental Claim for rectal cancer due to contaminated water at Camp Lejeune. See May 26, 2017 VA 21-526b, Veteran Supplemental Claim for Compensation. In a November 2017 Rating decision, the AOJ considered this as a claim to reopen the previous denied claim for service connection for a rectal cancer and confirmed and continued the denial. See November 8, 2017 Rating Decision. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38U.S.C.§§5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. Since the February 2016 Rating decision, the record contains a February 2017 Intestinal Surgery (Bowel Resection, Colostomy, Ileostomy) Disability Benefits Questionnaire; April 2017, Rectum and Anus Conditions Disability Benefits Questionnaire; an October 2019, VA Intestinal Conditions Disability Benefits Questionnaire and Medical Opinion; Correspondence regarding cancer study initiatives (received February 6, 2020); the Veteran’s February 2020 Board Hearing testimony and a March 2020 private nexus opinion. First, the Board notes that the February 2017 and April 2017 Disability Benefit Questionnaires reflect a diagnosis of rectal cancer. Second, the October 2019, VA Intestinal Conditions Disability Benefits Questionnaire and Medical Opinion, in conjunction with the March 2020 private nexus opinion addresses a nexus to service. The Veteran’s February 2020 Board Hearing testimony supplements this evidence. The Board finds that evidence is new because the existing evidence was not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Second, this evidence is material because by itself, or when considered with the previous evidence of record, addresses the underlying reason for the original February 2016 denial (no currently diagnosed disability) and relates to an unestablished fact necessary to substantiate the claim. Based on the foregoing, the Board finds that the newly submitted evidence described above, is both new and material. Having submitted new and material evidence, the Veteran's claim is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). REASONS FOR REMAND Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability because of his military occupational specialty as a Mortar man. As an initial matter, the Board concedes exposure to acoustic trauma as part of his duties during active service. See DD-214 (Mortar man, 3 years, 2 months). Further, in a December 2015 Statement in Support of his claim, the Veteran asserted that he was exposed to hazardous noise under combat conditions during service. The Veteran indicated that he had no hearing protection, particularly in 1983 while stationed in Beirut, Lebanon. The Veteran asserted that he was responsible for filling sandbags, patrolling the perimeter, maintaining security. The Veteran also asserted that he was within a few hundred feet of the airstrip. The Veteran indicated that large civilian aircrafts of all types would land and take off. See December 10, 2015 Statement in Support of Claim, VA Form 21-4138. Moreover, the Veteran testified at his February 2020 Board Hearing that he did experience hearing loss during service and that a Doctor noticed that he had hearing loss. The Veteran acknowledged that this report of hearing loss during service does not show in his record, but he insisted that he did experience hearing loss during that time. See February 6, 2020 Board Hearing transcript, pgs. 5-7. The Board notes that the Veteran has submitted photographs which allegedly depict his proximity to an air strip during service. The Veteran also submitted photographs depicting the types of equipment he used as a Mortar man during service. See Air Strip Photographs (Receipt Date, April 14, 2019; See also Correspondence re: equipment (Receipt Date, February 9, 2017). The Veteran was afforded a Bilateral Hearing Loss examination in January 2016 to determine the nature and etiology of his bilateral hearing loss disability. The VA examiner rendered a negative nexus opinion to service. The examiner reasoned that “all audiograms reviewed in the STRs indicate normal hearing thresholds. The Institute of Medicine has stated that there is not sufficient evidence based on longitudinal studies to conclude that a hearing loss that appears many years after noise exposure can be causally related to that noise exposure if hearing was normal immediately after the exposure. Based on current knowledge of cochlear physiology there is no sufficient scientific basis for the existence of delayed-onset hearing loss. (Noise and Military Service-Implications for Hearing Loss and Tinnitus, Institute of Medicine, National Academy of Sciences, 2006.)” See January 26, 2016. Hearing Loss and Tinnitus Disability Benefits Questionnaire, pg. 3. The Board notes however that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) In this case, the Board observes that the examiner does not address the Veteran’s assertions of experiencing significant noise exposure during service as a Mortar man, and his assertion of experiencing hearing loss during service. The Board observes that in the Veteran’s January 1983 Report of Medical History, which is noted as a replacement physical, the Veteran indicates that he does not know whether he had sustained hearing loss. See January 14, 983 Report of Medical History. While the examiner does point to an IOM study which refutes delayed onset of hearing loss, the Board highlights that this examination fails to address the Veteran’s credible evidence of significant acoustic trauma during service as a result of his MOS. Hence, the Board finds this examination inadequate for adjudication purposes. In Barr v. Nicholson, 21 Vet. App. 303, 311(2007), the United States Court of Appeals for Veterans Claims found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Board also reiterates that normal hearing at separation is not fatal to a claim of service connection for hearing loss. See, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). For the reasons discussed above, the issue is remanded to the AOJ for a new VA examination to assess the nature and etiology of his bilateral hearing loss disability, with consideration of the Veteran’s lay assertions of exposure to significant acoustic trauma during service. Entitlement to service connection for rectal cancer. The Veteran asserts that his rectal cancer was caused by exposure to contaminated water at Camp Lejeune during service. See December 10, 2015, VA Form 21-526EZ Claim; See also May 26, 2017 VA Form 21-526b, Supplemental Claim. The Veteran's service personnel records confirm service of at least 30 days at Camp Lejeune during the applicable time period, and so exposure to contaminated drinking water is conceded. See 38 C.F.R. § 3.307(a)(7); See also, Military Personnel Records. The Board notes that while the Veteran's service personnel records show that he served at Camp Lejeune for no less than 30 days, and VA has conceded his in-service exposure to contaminated water at Camp Lejeune, rectal cancer is not among the diseases identified in 38 C.F.R. § 3.309(f) as being associated with exposure to contaminated water at Camp Lejeune. Therefore, the presumption under 38 C.F.R. § 3.309(f) is not for application. Nevertheless, the Veteran is not precluded from establishing service connection for rectal cancer through proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Further, showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is an alternative means of linking a claimed disability to service, but is only available for the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Rectal cancer is a chronic disease under 38 C.F.R. § 3.309(a) (as a malignant tumor). In this case, the Veteran testified at his Board Hearing that he has been receiving Social Security Administration (SSA) disability benefits since 2019, as it pertains to his current disability. See February 2020 Board Hearing transcript, pg. 9. No SSA records have been associated with the Veteran's electronic claims folder. The Court of Appeals for Veterans Claims (Court) has held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). The Veteran's SSA records should be obtained on remand as they may contain information relevant to the issues on appeal. Additionally, the Veteran has submitted an October 2020 private nexus opinion with regards to his service connection claim. However, this private nexus opinion appears to indicate that the Veteran’s cancer of the colon or large bowel is included as a presumptive disease for purposes of service connection, which it is not. Further, it is not clear from the record that the Veteran has a diagnosis of colon cancer. See October 2020 private nexus opinion from Dr. L.B.R. (examination date, 03/05/2020). The Board finds however that an addendum medical opinion is warranted to establish the nature and etiology of this Veteran’s rectal disability. The Board cannot, in making its decisions, assert its own medical opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Additionally, the Board observes that the Veteran has submitted literature and correspondence regarding a possible relationship between his claimed disability and his in-service exposure to contaminated water at Camp Lejeune. See Camp Lejeune Health Studies, (Document type, Correspondence, Receipt date, June 21, 2019); See also Correspondence, Department of Navy, Receipt Date, February 6, 2020. The Board is cognizant that the Veteran has been afforded an October 2019 VA examination and medical opinion with regards to his rectal cancer disability. The examiner rendered a negative nexus opinion based on the fact that the Veteran’s service treatment records were silent with regards to any complaints or treatment for a rectal disability during service. See October 16, 2019, Medical Opinion, Disability Benefits Questionnaire, pg. 2. In view of this additional evidence (i.e., private nexus opinion, literature) and further development of the record (obtaining Social Security Disability records), the Board finds that an addendum medical opinion is warranted with regards to the nature and etiology of this Veteran rectal disability prior to the adjudication of this claim. Accordingly, these matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA treatment records and any relevant outstanding private treatment records and associate them with the electronic claims file. 2. Contact the Social Security Administration and obtain a complete copy of any adjudication and the records, including medical records, underlying the adjudication for disability benefits. After, and only after, completion of step one above, schedule the Veteran for a new VA examination by an appropriate clinician to determine the etiology of his diagnosed bilateral hearing loss disability and whether his bilateral hearing loss disability is at least as likely as not related to an in-service injury, event, or disease, to include as a result of conceded acoustic trauma due to his MOS therein. See DD-214. In addressing this question, please do not rely solely on the fact that the Veteran had "normal" hearing at separation from service to support the opinion. The examiner must address the Veteran's credible contentions that he was exposed to loud noises in service working as a Mortar man under combat conditions in Beirut, Lebanon. See February 2020 Board Hearing transcript, pgs. 5-7; See also, December 10, 2015 Statement in Support of Claim, VA Form 21-4138. Please note review of this Board Hearing testimony and Correspondence. The examiner must opine as to whether it at least as likely as not that the Veteran has a bilateral hearing loss disability that (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. Thereafter, obtain a VA addendum medical opinion from a physician with appropriate expertise regarding the nature and etiology of the Veteran's rectal cancer. The VA physician must review the claims file, the Social Security Administration record and a copy of this remand. If an examination or telehealth interview is deemed warranted, one should be arranged. All indicated tests and studies should be completed. After thorough review of the claims file, including the Social Security Administration records, the VA examiner should respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's rectal cancer was incurred in service or is the result of any incident in service, to specifically include his presumed exposure to contaminated water at Camp Lejeune? Note: For purposes of this examination, the examiner is requested to review and comment on the private nexus opinion from Dr. L.B.R. (Document type, Medical Treatment record, Receipt date, October 1, 2020 with respect to diagnosis (colon-rectal cancer). The examiner is also invited to review the following literature and correspondence submitted by the Veteran with regards to this claim: Camp Lejeune Health Studies (Document type, Correspondence, Receipt date, June 21, 2019); See also Correspondence, Department of Navy (Document type, Correspondence, Receipt Date, February 6, 2020.) Please note review of this literature and Correspondence. A complete rationale should be provided for all opinions and conclusions expressed. Citation to appropriate medical principles or treatises would be helpful to the Board's review. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.