Citation Nr: 21065948 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-19 690 DATE: October 28, 2021 ORDER New and material evidence having been presented, the request to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a thyroid disorder is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to a blood pressure disorder (claimed as hypertension) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Since a final July 2015 regional office (hereinafter agency of original jurisdiction or AOJ) decision, the Veteran has submitted new and material evidence relating to unestablished facts and raising a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 2. The preponderance of the evidence of record is against finding that the Veteran's thyroid disorder first manifested inservice or is otherwise related to service. 3. The preponderance of the evidence of record is against finding that the Veteran's prostate cancer first manifested during or within one year of separation from service or is otherwise related to service. 4. The preponderance of the evidence of record is against finding that the Veteran's blood pressure disorder first manifested during or within one year of separation from active service or is otherwise related to his active service. CONCLUSIONS OF LAW 1. Following the prior final denial of July 2015, new and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a thyroid disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from February 1975 to June 1977, with several years of subsequent reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2018 rating decision issued by an AOJ of the Department of Veterans Affairs (VA). The Veteran testified at a June 2021 hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. The Board has advanced this case on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss The Veteran's claim of entitlement to service connection for bilateral hearing loss was denied in a July 2015 rating decision. By letter dated July 9, 2015, the Veteran was notified of this decision and his appellate rights. The Veteran did not appeal this decision or submit new and material evidence within one year, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. If a claim of entitlement to service connection is denied in an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for raising a reasonable possibility of substantiating the claim is a low one. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran was afforded a VA audiological examination in May 2016, during which the examiner observed sensorineural hearing loss in both ears. The examiner noted the Veteran denied post-service civilian occupational and recreational noise exposure but opined that this hearing loss was less likely than not due to the Veteran's active service in the Navy. The examiner noted that the Veteran's military occupational specialty of medic carried a low probability of noise exposure and that his entry and separation examinations recorded normal, stable hearing. This opinion provided the basis for the July 2015 denial of entitlement to service connection, which emphasized the absence of a nexus between the Veteran's service and his bilateral hearing loss. An October 2018 AOJ rating decision declined to reopen the Veteran's claim based on a lack of new and material evidence. Since the final July 2015 AOJ decision, the Veteran appeared before the undersigned Veterans Law Judge at a June 2021 hearing. The Veteran reiterated his lack of post-service noise exposure and noted that he was unable to continue employment as a surgical technician in 2012 due to his hearing loss. He reported first noticing his hearing loss in the 1990's and stated that he worked in a base hospital inservice. The Veteran noted that for two and a half years during reserve service he was stationed on an airbase with many helicopters, and that he was near them during muster and some assignments. The Board finds that the evidence received since the July 2015 decision includes additional evidence of inservice noise exposure. This evidence is new as it was not considered by the audiologist when formulating the only medical opinion of record, which served as the basis for the previous denial. It is relevant as relates to an unestablished fact needed to establish service connection, i.e., possible inservice acoustic trauma. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss have been met. Service Connection The Veteran contends that his prostate, thyroid and hypertension disorders are interrelated and due to his service in the Reserves. In particular, he alleges that these disorders are caused chemical exposures at a Superfund Site. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain diseases, such as hypertension or a malignant tumor, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated "chronic disease" shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). "Veteran" status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). The term "active duty" includes full-time duty in the Armed Forces, other than ACDUTRA. 38 U.S.C. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101(10). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the Veteran would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Paulson, 7 Vet. App. at 471. Moreover, even for veterans who have achieved "veteran" status through a prior period of active service and claim a disability incurred only during a different period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). See also Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (the presumption of aggravation is not applicable to ACDUTRA service unless claimant is service-connected for a disability for such period of ACDUTRA). There must be an entrance examination prior to the specific period of ACDUTRA or INACDUTRA in which the Veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Smith, 24 Vet. App. at 45-46. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation - (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan, 24 Vet. App. at 174. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. at 175. For purposes of 38 U.S.C. § 101(24), the term "injury" refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). 2. Entitlement to service connection for a thyroid disorder 3. Entitlement to service connection for prostate cancer 4. Entitlement to service connection for a blood pressure disorder At the June 2021 Board hearing, the Veteran and his representative alleged that these three conditions were interrelated. The Veteran reported a diagnosis of stage IV prostate cancer and indicated he was experiencing thyroid issues, possibly as a side effect of his cancer medications. The Veteran also noted that he had a history of hypertension, been prescribed three different blood pressure medications for both high and low blood pressure, and that his blood pressure was affected by his cancer medications. The Veteran and his representative contended that the Veteran's claimed disorders were due to chemical exposure to a federal Super Fund site during his reserve service. They indicated they would be obtaining and submitting medical opinions regarding the nexus between the site and the Veteran's claimed disorders. The undersigned Veterans Law Judge stated he would keep the record open for 60 days, until August 13, 2021. There is no record of the receipt of further correspondence from the Veteran or his representative in the claims file. The Board observes that the Veteran has not been afforded VA examinations for the claimed conditions. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, 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) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, a conclusory generalized statement that of a relationship between disease or disability and service is insufficient to trigger the duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In this case, the Veteran's service treatment records are silent for complaints of or treatment for hypertension, prostate cancer, or thyroid issues. A review of his post-service treatment records reveals no indication that these disorders began within a year of his separation or are otherwise related to his active service. His hypertension was diagnosed in 1991, his thyroid disorder was noted in 2002 with an abnormality revealed by imaging in 2013, while his prostate cancer was diagnosed in 2015. There is no lay or medical evidence that such disorders manifested during active service or until many years later. Although the Veteran and his representative have alleged that the Veteran's disorders are due exposure to a federal Super Fund site during reserve service, they have not provided any reliable evidence of the type(s) of exposures; the location, dates and duration of any exposure; nor any competent evidence suggesting a causal relationship between any particular chemical exposure and his disorders. They have not identified any particular period or periods of ACDUTRA/INACDUTRA service as causing or aggravating these disorders. The Veteran is not competent to speak to the causal relationship between serving near or on a Super Fund site and the development of the claimed disorders. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). As such, the Board finds that VA's duty to provide an examination or opinion has not been triggered. McClendon, 20 Vet App. at 81. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). However, in this case, a preponderance of the evidence is against finding that the Veteran's hypertension, prostate and thyroid disorders first manifested in or are otherwise due to his military service. Therefore, the benefit of the doubt rule is not for application and the claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. As noted above, the Veteran has provided credible testimony regarding inservice noise exposure that was not considered by the VA examiner in the only medical opinion of record. Therefore, remand for an addendum opinion is warranted in order to determine whether the Veteran's reported inservice noise exposure contributed to his current bilateral hearing loss. See Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020) (an examiner's opinion must address the Veteran's relevant lay statements in order to include enough detail to inform the Board's decision). The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's diagnosed bilateral hearing loss. The need for a new examination is left to the discretion of the examiner. The examiner is asked to opine whether the Veteran's bilateral hearing loss is at least as likely as not due to the cumulative effects of noise exposure during his active service from February 1975 to June 1977 and his subsequent 2 years of reserve service. The examiner is asked to specifically address the Veteran's June 2021 hearing testimony, which is to be accepted as true, reporting proximity to helicopters while serving in the hospital on an airbase from 1977 to 1979. A full rationale must be provided for any opinion offered. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.