Citation Nr: 21068779 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-27 235 DATE: November 12, 2021 ORDER New and material evidence having not been received, the application to reopen the claim for service connection for bilateral hearing loss is denied. New and material evidence having not been received, the application to reopen the claim for service connection for tinnitus is denied. Service connection for squamous cell carcinoma is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1964 to July 1968, to include service in the Republic of Vietnam. 2. Service connection for bilateral hearing loss was denied in October 2008 and again in March 2012; evidence submitted since the last final denial in March 2012 is not new and material. 3. Service connection for tinnitus was denied in October 2008; evidence submitted since the last final denial in October 2008 is not new and material. 4. Squamous cell carcinoma was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; current squamous cell carcinoma, is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The October 2008 and March 2012 rating decisions are final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2021). 2. New and material evidence has not been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2021). 3. New and material evidence has not been received to reopen the claim of service connection for tinnitus. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2021). 4. Squamous cell carcinoma was not incurred in service, is not related to service, and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5017 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims for Hearing Loss and Tinnitus Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The claim for bilateral hearing loss was denied in October 2008 and March 2012 due to lack of in-service incurrence and lack of medical nexus. The claim for tinnitus was originally denied in an October 2008 rating decision due to lack of in-service incurrence and lack of medical nexus. The Veteran did not appeal these decisions and they became final one year following their issuance. With respect to bilateral hearing loss, evidence since the last final denial in March 2012 is cumulative or redundant of the evidence previously of record. Medical evidence reflects current treatment and diagnoses relevant to bilateral hearing loss but does not provide evidence in support a relationship between the disability and service. Importantly, none of the medical evidence added to the record reflects that bilateral hearing loss was present during service, within one year of service, or is otherwise related to service or service-connected disability. With respect to tinnitus, the evidence added to the record since the last final denial in October 2008 does not show that a current disorder began in service or is otherwise caused by or related to service. Therefore, no evidence of a nexus between tinnitus and service has been shown. As such, the evidence added to the record is not new and material, as it does not present a reasonable possibility of substantiating the claims. Therefore, the claims for service connection for bilateral hearing loss and tinnitus are not reopened and the appeals are denied. Service Connection for Squamous Cell Carcinoma Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the medical evidence, the clinical treatment records reflect that the Veteran has received treatment for several skin lesions since December 2017, including right proximal dorsal forearm invasive squamous cell carcinoma, mid occipital scalp focal squamous cell carcinoma, squamous cell carcinoma of the right inferior helix, carcinoma in situ located on the nasal root, left ear in situ melanoma on the superior helix, and well differentiated invasive squamous cell carcinoma. A January 2018 Disability Benefit Questionnaire (DBQ) submitted by the Veteran reflects a diagnosis of melanoma in situ and well differentiated squamous cell carcinoma. Therefore, a current diagnosis has been shown and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) are silent for complaints, treatment, or diagnosis of a squamous cell carcinoma disorder. The June 1968 separation examination noted a scar on the left forearm, right lower quadrant, and on the left hand but there was no indication of skin cancer to any location. Therefore, the second element of service connection has not been met. Further, none of the diagnoses are presumed associated with herbicide exposure. The medical evidence does not relate the Veteran's squamous cell carcinomas to service, including presumed herbicide exposure. Throughout the treatment for various skin cancers since December 2017, there has been no indication that such disorders are associated with service, including herbicide exposure. In the private DBQ, the clinician noted diagnoses of melanoma in situ since September 2017 and well differentiated squamous cell carcinoma since December 2017. Except for a reference to "extensive hx of skin cancer," the clinician did not provide a medical nexus connection to service. The Veteran has not been provided a VA examination to assess the etiology of his squamous cell carcinoma disorders, but absent competent evidence that such disorders are associated with service, a VA examination is not warranted. As such, the evidence weighs against finding a nexus and does not support service connection on a direct basis. Next, malignant tumors are chronic diseases under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As observed above, the STRs do not reflect complaints of, treatment for, or a diagnosis of squamous cell carcinoma. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. The Veteran separated from service in July 1968. The medical evidence shows that symptoms of his current disorder developed nearly 50 years after service. As such, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service, and presumptive service connection on a "manifest within one-year from separation" basis is also not supported by the evidence. Therefore, presumptive service connection on any basis is not warranted. The Board has considered the Veteran's lay statements that that his squamous cell carcinomas were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to etiology due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records and clinical evidence. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal for service connection for skin cancer is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.