Citation Nr: 21065965 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-25 718 DATE: October 28, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. A January 2012 rating decision denied the issues of entitlement to service connection for bilateral hearing loss and a low back disability; the Veteran did not appeal the decision and no new and material evidence was associated with the claims file within a year of notification of the decision. 2. Evidence received since the January 2012 rating decision that denied service connection for bilateral hearing loss and a low back disability is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claims. 3. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his bilateral hearing loss is related to his service. CONCLUSIONS OF LAW 1. A January 2012 rating decision, which denied service connection for bilateral hearing loss and a low back disability, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the previously denied claims for entitlement to service connection for bilateral hearing loss and a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to April 1985, with subsequent periods of service in the Air Force Reserve and Civil Air Patrol. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2021 Board hearing. A transcript of the hearing is of record. The Board acknowledges that additional private medical records and lay statements have been associated with the claims file since the RO issued a March 2018 Statement of the Case. Under 38 C.F.R. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of RO review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance. Additionally, as the Board is granting the issue of service connection for bilateral hearing loss, and remanding the remaining issues on appeal, the Board finds no prejudice to the Veteran in deciding the issues on the merits. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. In October 2011 and January 2012 rating decisions, the RO denied the Veteran's claim to service connection for bilateral hearing loss, finding that the record did not demonstrate a link between his current hearing loss and in-service military noise exposure. The Veteran did not file a notice of disagreement with that decision and no new and material evidence was received within a year of notification of the decision. Therefore, the January 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In the January 2018 rating decision on appeal, the RO denied reopening the Veteran's claim for entitlement to service connection for bilateral hearing loss based on a finding that there was no new and material evidence received. However, the Board finds that new and material evidence associated with the claims file since the January 2012 rating decision has been received. In that regard, evidence associated with the claims file since the January 2012 rating decision includes July 2019 and July 2021 private medical opinions providing a link between the Veteran's current bilateral hearing loss and in-service military noise exposure. See July 2019 and July 2021 private medical opinions. The Board finds the July 2019 and July 2021 private medical opinions new and material as they relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds new and material evidence has been received to reopen the Veteran's claim to entitlement to service connection for bilateral hearing loss. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. In October 2011 and January 2012 rating decisions, the RO denied the Veteran's claim to service connection for a low back disability, finding that the record did not demonstrate an in-service injury or diagnosis of a back injury in service or that his condition was caused by his military service. The Veteran did not file a notice of disagreement of the January 2012 rating decision and no new and material evidence was received within a year of notification of the decision. Therefore, the January 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond, 659 F.3d at 1367. In the January 2018 rating decision on appeal, the RO denied reopening the Veteran's claim for entitlement to service connection for a low back disability based on a finding that there was no new and material evidence received. However, the Board finds that new and material evidence associated with the claims file since the January 2012 rating decision has been received. In that regard, evidence associated with the claims file since the January 2012 rating decision includes the Veteran's lay statements and July 2021 private medical opinion. Specifically, the Veteran testified he experienced back pain in service. See August 2021 hearing transcript. A July 2021 private medical opinion indicates a link between the Veteran's low back condition and military service. See July 2021 private medical opinion. The Board finds the Veteran's lay statements and July 2021 private medical opinion new and material as they relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds new and material evidence has been received to reopen the Veteran's claim to entitlement to service connection for a low back disability. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss, as related to in-service noise exposure. See March 2011 and November 2017 VA Forms 21-526. Specifically, the Veteran contends that his bilateral hearing loss is due to constant exposure to jet noise while flying aircraft during his active duty service. See September 2011 and November 2017 Correspondence; August 2021 hearing transcript. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, to include organic diseases of the nervous system such as hearing loss, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). A hearing loss disability for VA purposes means that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran initially underwent a VA audiological examination in May 2011, at which time it was demonstrated that he had a bilateral hearing loss disability for VA compensation purposes. See May 2011 VA examination. Therefore, the first element of service connection has been established. See Shedden, 381 F.3d at 1167. With respect to an in-service injury or disease, the Veteran's military occupational specialty (MOS) includes pilot and flight training instructor. The RO conceded the Veteran was exposed to a high probability of hazardous noise exposure due to his MOS. See March 2018 Statement of the Case. The Veteran has consistently asserted and testified that he was exposed to loud noises from aircraft during his military service. See September 2011 and November 2017 Correspondence; August 2019 statement in support of claim; August 2021 hearing transcript. The Veteran is competent to describe his in-service noise exposure. See Washington v. Nicholson, 19 Vet. App. 363, 369 (2005). Moreover, an August 1980 audiology examination demonstrates the Veteran had left ear hearing loss of 30 dB at 3000 Hz. See August 1980 service treatment records. Therefore, the Board finds that the second Shedden element of an in-service injury, consisting of acoustic trauma, has been met. See Shedden, 381 F.3d at 1167. With respect to the third element of service connection, as noted, the Veteran was afforded an initial VA examination in May 2011. The VA examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by or a result of military noise exposure. See May 2011 VA examination. As rationale, the VA examiner noted the Veteran's hearing was normal at entrance and separation from service. Id. The VA examiner found that the Veteran's military audiological records did not support the Veteran's claim. Id. The VA examiner found that the Veteran's bilateral hearing loss was more likely due to an outside source such as occupation noise exposure. Id. However, the VA examiner did not address the Veteran's service treatment records indicating abnormal hearing at the 3000 Hz frequency for the Veteran's left ear. See August 1980 service treatment records. Additionally, the VA examiner did not further explain why the Veteran's bilateral hearing loss was more likely due to the Veteran's occupational noise exposure. Therefore, the Board finds the May 2011 VA examination inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In support of his claim, the Veteran provided a July 2019 audiologic examination. The private physician opined that the Veteran's hearing loss was more likely than not due to noise exposure he sustained during his 20 years of service as a pilot in the United States Air Force. See July 2019 private examination. The private physician noted the Veteran reported a history of noise exposure during 20 years of service as a pilot. Id. However, the Veteran only served on active duty from January 1976 to April 1985 and testified he did not have any further flying positions the rest of his career in the Air Force Reserve and Civil Air Patrol. See August 2021 hearing transcript. As such, the July 2019 private examination is inadequate for decision making purposes as it is not based on an accurate factual premise. See Nieves-Rodriguez, 22 Vet. App. at 302. The Veteran provided a July 2021 private audiogram and medical opinion. The private physician opined that it is at least as likely as not the Veteran suffers from noise-induced bilateral hearing loss that was experienced in his military career. See July 2021 private medical opinion. The private physician noted review of the Veteran's pertinent records and noted the Veteran's August 1980 audiogram and onward documented progressive noise-induced hearing loss patterns in each ear. Id. The private physician noted the Veteran was exposed to dangerous noise levels that were experienced with the type of aircraft that he was piloting and otherwise around on a daily basis during his career; other etiologies were ruled out, including obtaining an MRI scan of the brain and inner ears that were negative for such pathology intracranially or in the inner ear that could result in hearing loss; and that it was well known in medical journals that long-term exposure to sounds above 88 dB such as those found on a United States Air Force installation during his time in service is a contributing factor to his current medical concerns. Id. The Board finds the July 2021 private examiner's medical opinion adequate for decision making purposes and entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302. In sum, the Board finds that there is adequate medical evidence that the Veteran's bilateral hearing loss is at least as likely as not related to his active duty service. Therefore, in consideration of all the evidence in this case, and with resolution of any doubt in the Veteran's favor, the Board finds that service connection for the Veteran's bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for a skin disability is remanded. The Veteran seeks service connection for a skin disability, claimed as carcinoma, due to radiation exposure. See November 2017 VA Form 21-526. The Veteran contends that his duties during service included flying through nuclear test sites. See August 2021 hearing transcript. The Veteran testified that, in 1980, he flew through China and had to go into the procedures for an in-flight positive where they had to confiscate all of their meals because they were exposed to radiation. Id. The Board finds that remand for additional development is necessary. In that regard, the Veteran's military personnel records and service treatment records do not indicate the Veteran was exposed to radiation. However, the Veteran submitted flight records that he contends demonstrate his flight aboard a WC-135B aircraft over China in 1980 when he was exposed to radiation. See military personnel records received in December 2017 and August 2021. The second page of the document indicates a 1980 flight over or near China and notes an "atmospheric" and "ballistic missile warhead?" at "1 Mt" as well as "Last atmospheric test in the world." Id. The source of this information is not provided on the documentation. An October 1980 officer effective report (OER) notes the Veteran was assigned to the 55th Weather Recon Squadron from August 1980 to August 1981 and that his duties included being part of crew that conducted nuclear sampling operations and weather reconnaissance. The October 1980 OER also notes the Veteran flew United States Air Force directed missions to meet national requirements in monitoring the Limited Test Ban Treaty. In August 2021, the Veteran submitted an article indicating the 55th Reconnaissance Weather Squadron flew missions from the 1940's through 1960's into clouds of radioactivity released in nuclear tests. However, it is unclear whether the Veteran was exposed to radiation at any time during his active duty service. The Board notes that the Veteran's complete personnel records do not appear to be associated with the record. In light of the Veteran's statements, articles, and incomplete military personnel records, remand is appropriate to attempt to rectify these deficiencies, including efforts to verify the Veteran's exposure to radiation, prior to adjudication of the claim. Additionally, the Board notes the Veteran has not been afforded a VA examination. VA must provide a medical examination or obtain a medical examination when there is: (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 or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In this case, the evidence of record demonstrates the Veteran has a diagnosis of actinic keratoses, a premalignant condition of the skin. See December 2017 private treatment records. The Veteran provided a private medical opinion in July 2021. The private physician noted the Veteran has a current diagnosis of actine keratoses, which left untreated, can develop into squamous cell carcinoma, and noted the Veteran's reports of being exposed to nuclear radiation while on flight missions in the United States Air Force. See July 2021 private medical opinion. The private physician opined that it was at least as likely as not that the Veteran's actinic keratoses was due to his radiation exposure while in service. Id. However, the private physician did not provide any further explanation and, as noted, the Veteran's claimed radiation exposure has not yet been confirmed. As such, remand is also necessary to obtain a VA examination. See McLendon, 20 Vet. App. at 81. Entitlement to service connection for a low back disability is remanded. The Veteran seeks service connection for a low back disability. See March 2011 and November 2017 VA Forms 21-526. The Board notes the Veteran has not been afforded a VA examination. In this case, the Veteran contends that he experienced back pain while service that persisted and worsened until he sought treatment in 1989 after service. The Veteran testified that he did not seek treatment while in the service as he was worried that he might lose his pilot qualifications. See August 2021 hearing transcript. The Veteran also provided a statement from his spouse asserting the Veteran did not have any back problems until service; back problems became worse after service; and that he required emergency surgery. See November 2017 buddy statement. The Veteran's private treatment records demonstrate the Veteran underwent L5-S1 disc excision after reactive changes in the bone marrow of that area in November 1989. See November 1989 and July 2021 private treatment records. The Veteran's private treatment records also note an impression for degenerative changes at L5-S1 in May 2011. See May 2011 private treatment records. The Veteran provided a July 2021 private medical opinion. The private physician noted the Veteran has been experiencing long-term associated pain from the November 1989 procedure. See July 2021 private medical opinion. The private physician concluded that it was at least as likely as not that the reactive changes are due to chronic G-force exposures and vibratory traumas sustained while in service. Id. The private physician did not provide any rationale for the medical opinion provided. However, as there is an indication that the Veteran's low back disability may be associated with his active service, there is insufficient competent medical evidence to decide the claim. See McLendon, 20 Vet. App. at 81. As such, remand is necessary to afford the Veteran with a VA examination to determine the nature and etiology of the Veteran's low back disability. Id. at 83-86. The matters are REMANDED for the following action: 1. Contact the Veteran to request clarification regarding the source of the information provided in the personnel records received in December 2017 and August 2021 which the Veteran contends demonstrate his flight aboard a WC-135B aircraft over China in 1980 when he was exposed to radiation. Specifically ask the Veteran to explain the source of the information on the second page of the document which indicates a 1980 flight over or near China and notes an "atmospheric" and "ballistic missile warhead?" at "1 Mt" as well as "Last atmospheric test in the world." 2. Attempt to obtain the Veteran's complete service personnel records. If no additional service records are available, a formal memorandum showing unavailability should be added the Veteran's claims file, and provide the Veteran and his representative the appropriate notification(s) as required per 38 C.F.R. § 3.159. 3. Then, make appropriate efforts to confirm whether the Veteran was exposed to radiation based on his duties as part of the 55th Weather Reconnaissance Squadron at any time during his active duty service. All attempts to secure this evidence must be documented and associated with the claims file. 4. Then, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's skin disability, diagnosed as actinic keratoses. A copy of this Remand and the claims file should be provided to the examiner for review. The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's skin condition, actinic keratoses, had its onset during service or is otherwise etiologically related to an in-service event, injury, or disease, to include radiation exposure, if confirmed. A complete rationale should be given for all opinions and conclusions expressed. The examiner is requested to consider and address the July 2021 private medical opinion indicating a link between the Veteran's skin disability and exposure to radiation. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. 5. Then, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's low back disability. A copy of this Remand and the claims file should be provided to the examiner for review. The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's low back condition had its onset during service or is otherwise etiologically related to an in-service event, injury, or disease. A complete rationale should be given for all opinions and conclusions expressed. The examiner must address the Veteran's lay statements that his back pain started in service and private treatment records, including the July 2021 private medical opinion indicating a link between the Veteran's low back disability and military service. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.