Citation Nr: 21069008 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 11-25 376 DATE: November 17, 2021 ORDER The claim for entitlement to service connection for bilateral hearing loss is reopened. The claim for entitlement to service connection for chronic obstructive pulmonary disease (COPD) is reopened. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for COPD is remanded. Service connection for a traumatic brain injury (TBI) is remanded. Service connection for an allergy to petroleum products is remanded. Service connection for tuberculosis is remanded. FINDINGS OF FACT 1. An unappealed January 2008 rating decision denied the Veteran's claims of service connection for bilateral hearing loss and chronic bronchitis. 2. Additional evidence received since the January 2008 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claims, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and chronic bronchitis. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for bilateral hearing loss based on the receipt of new and material evidence have been met. 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria to reopen the claim of service connection for COPD based on the receipt of new and material evidence have been met. 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and April 2012 rating decisions issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing in July 2021; a transcript of the proceedings is of record. The Board notes that at the hearing, one of the Veteran's conditions was characterized as entitlement to service connection for allergic rhinitis, but it was acknowledged that this claim was originally filed as an allergy to petroleum products. This decision has characterized the appeal as service connection for an allergy to petroleum products, as the Veteran testified to symptoms beyond allergic rhinitis, to include skin irritation. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Claims to Reopen Where service connection for a disability has been denied in a final decision, a subsequent claim of service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 C.F.R. § 3.156(a). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been presented sufficient to reopen entitlement to service connection for bilateral hearing loss The Veteran's claim of entitlement to service connection for bilateral hearing loss was originally denied in a January 2008 rating decision. The evidence of record at the time of the January 2008 rating decision included the Veteran's service treatment records and outpatient treatment records. The rating decision denied the claim because there was no evidence of an in-service event, injury, or incurrence, and no evidence of a link between an in-service injury and a current disability. The Veteran did not file a notice of disagreement or submit additional relevant evidence within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § 20.1103. The Veteran submitted a request to reopen his claim for service connection for bilateral hearing loss in January 2012. An April 2012 rating decision found no new and material evidence had been received and declined to reopen the claim. A hearing loss examination was obtained in June 2013. The examiner found the Veteran's hearing loss was less likely as not caused by or the result of an event in the military because the Veteran's hearing loss was within normal limits at discharge. At the hearing, the Veteran's mother testified that the Veteran did not have any issues with hearing before he went on active duty. However, she testified that she noticed hearing problems during his time in the Coast Guard, when he was home on leave. She said that this progressed as he was in service longer, and when he left service it continued to get worse. This testimony is evidence of an in-service incurrence of hearing loss. This evidence is new, relates to an unestablished fact, and shows a reasonable probability of substantiating the claim for service connection for bilateral hearing loss. Therefore, the claim of entitlement to service connection for bilateral hearing loss is reopened. 2. Whether new and material evidence has been presented sufficient to reopen entitlement to service connection for COPD The Veteran's claim of entitlement to service connection for chronic bronchitis was originally denied in a January 2008 rating decision. The evidence of record at the time of the January 2008 rating decision included the Veteran's service treatment records and outpatient treatment records. The rating decision denied the claim because there was no evidence of a current disability, no evidence of in-service injury, event, or incurrence, and no evidence of a relationship between an in-service injury or disease and a current disability. The Veteran did not file a notice of disagreement or submit additional relevant evidence within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § 20.1103. The Veteran submitted a claim for a lung condition due to asbestos exposure in March 2010, which the AOJ interpreted as a request to reopen his claim for service connection for chronic bronchitis. A July 2011 statement of the case indicated that the Veteran's 2009 medical records now indicate a diagnosis of COPD, which is new and material evidence. The Board agrees; VA medical records from 2009 forward showing a diagnosis of COPD is evidence of a current disability. This evidence is new, relates to an unestablished fact, and shows a reasonable probability of substantiating the claim for service connection for COPD. Therefore, the claim of entitlement to service connection for COPD is reopened. REASONS FOR REMAND 1. Service connection for bilateral hearing loss The Veteran attended a VA examination for hearing loss in June 2013. The examiner found that the Veteran had bilateral hearing loss for VA purposes, but that the current hearing loss is not related to military noise exposure. The examiner noted abnormal audiograms in service, but also discussed a note to the results indicating that they were not accurate, and the Veteran had normal hearing in both ears. The examiner stated that the discharge examination showed normal hearing and when compared to the enlistment examination, there was no significant change noted. This examiner's rationale is inadequate because it relies solely on the Veteran not exhibiting hearing loss in service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In addition, the Veteran also contends that his current hearing loss is related to his exposure to fuel while in service and has submitted articles to support this theory of entitlement. See June 2021 Statement in Support of Claim. As such, the AOJ should obtain a medical opinion addressing this theory of entitlement. 2. Service connection for COPD In disability compensation claims, 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; (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 or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not been afforded a VA examination for his COPD, and the Board finds that the Veteran should have been afforded a VA examination. The Veteran has a current diagnosis of COPD. He testified that he did not have any issues with breathing prior to service, but that he developed coughing and wheezing in service. He contends that his current disability is related to his in-service exposure to asbestos, diesel fumes, and welding fumes. He has submitted articles stating diesel exhaust and welding fumes may be associated with the development of COPD. The evidence of record indicates a current respiratory disability, evidence of an in service event, and an indication that the disability may be associated with the Veteran's service. McLendon, 20 Vet. App. at 81. Accordingly, the AOJ should obtain a VA examination. Additionally, the record does not indicate that development was conducted to determine if the Veteran was exposed to asbestos during service. The Veteran's service personnel records are not in the record. The Veteran stated that he was exposed to asbestos while serving on the USCGC Hamilton and USCGC Steadfast. He stated both ships had a lot of asbestos and ended up going in for refurbishment to tear out the asbestos, which he was involved in. Therefore, on remand, the AOJ must attempt to obtain the Veteran's service personnel records and then complete and document efforts to determine if the Veteran was exposed to asbestos. 3. Service connection for a traumatic brain injury (TBI) The Veteran has not been afforded a TBI examination, and the Board finds that the Veteran should be afforded a VA examination. At the hearing, the Veteran testified that he currently has headaches and neurological problems, to include weakness of the right side. The Veteran testified that he did not have any of these issues prior to service, but they developed during service after an in-service head injury. Service treatment records (STRs) indicate a head injury and scalp lacerations in March 1983. Therefore, the evidence of record indicates signs and symptoms of a disability, evidence of an in-service event, and an indication that the disability may be associated with the Veteran's service. McLendon, 20 Vet. App. at 81. Accordingly, the AOJ should obtain a VA examination. 4. Service connection for an allergy to petroleum products The Veteran has not been afforded an examination related to his petroleum allergy, and the Board finds that the Veteran should be afforded a VA examination. At the hearing, the Veteran testified that he has an allergic reaction when he is around petroleum products and will develop allergic reactions when exposed to them, so he currently has to avoid any fuel products. The Veteran and his mother testified he did not have any allergy problems prior to service, and stated that after petroleum exposure in-service, he developed red, itchy bumps, that would ooze and spread. The Veteran's STRs show several instances of treatment for a rash on his arms after exposure to diesel fuel from May to July 1984. Therefore, the evidence of record indicates signs and symptoms of a disability, evidence of an in-service event, and an indication that the disability may be associated with the Veteran's service. McLendon, 20 Vet. App. at 81. Accordingly, the AOJ should obtain a VA examination. 5. Service connection for tuberculosis (TB) The Veteran has not been afforded a VA examination for TB, and the Board finds that the Veteran should have been afforded an examination. The Veteran testified that he was exposed to TB while in service and was treated with medication. VA treatment records indicate the Veteran reported a history of TB in 1983. In 2011, the Veteran was diagnosed with a lung mass and his prior diagnosis of TB was noted in his medical history pertinent to the lung mass. Therefore, the evidence of record indicates signs and symptoms of a disability, evidence of an in-service event, and an indication that the disability may be associated with the Veteran's service. McLendon, 20 Vet. App. at 81. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. Attempt to obtain the Veteran's service personnel records. Document all efforts in the claims file, including any notifications to the Veteran and his representative, as required by 38 C.F.R. § 3.159. 3. Take all appropriate action necessary to develop the record or make formal findings of fact for the record regarding the nature and extent of the Veteran's exposure to asbestos during service (specifically addressing his contentions of exposure while serving on the USCGC Hamilton and the USCGC Steadfast, to include involvement in any refurbishment activities). All efforts to verify the reported exposure to asbestos must be documented in the claims file. 4. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following. Each opinion must be supported by rationale: (a.) Is the Veteran's bilateral hearing loss at least as likely as not (a 50 percent or greater probability) related to service? The examiner should consider and address the Veteran's and his mother's testimony that they first noticed the Veteran had difficulty hearing during service, and it has progressed since. (b.) Is the Veteran's bilateral hearing loss at least as likely as not (a 50 percent or greater probability) related to exposure to fuel in service? The examiner must consider and address the articles submitted by the Veteran in June 2021 addressing jet fuel exposure and hearing loss. 5. Schedule the Veteran for a VA examination for his COPD. The examiner must review the claims file. The examiner is asked to provide a response to the following. Each opinion must be supported by rationale: (a.) Is the Veteran's COPD at least as likely as not (a 50 percent or greater probability) related to service? (b.) Is the Veteran's COPD at least as likely as not (a 50 percent or greater probability) related to his claimed in-service exposure to asbestos? The examiner must consider the Veteran's lay statements regarding in-service exposure to asbestos. (c.) Is the Veteran's COPD at least as likely as not (a 50 percent or greater probability) related to his claimed in-service exposure to diesel exhaust and welding fumes? The examiner must consider and address the article submitted by the Veteran in June 2021 concerning occupational diesel exhaust exposure as a risk factor for COPD. 5. Schedule the Veteran for a VA examination for a TBI or residuals of a TBI. The examiner must review the claims file. The examiner is asked to provide a response to the following. Each opinion must be supported by rationale: (a.) Does the Veteran have a TBI or residuals of a TBI? (b.) If a TBI or any residuals of a TBI are found, is the condition at least as likely as not (a 50 percent or greater probability) related to The Veteran's service? The examiner should consider and address the STRs indicating a head injury in service and the Veteran's testimony regarding his head injury and symptoms. 6. Schedule the Veteran for a VA examination for his petroleum allergy. The examiner must review the claims file. The examiner is asked to provide a response to the following. Each opinion must be supported by rationale: (a.) Does the Veteran have a petroleum allergy or any residuals related to a petroleum allergy? (b.) If a petroleum allergy is found, is it at least as likely as not (a 50 percent or greater probability) related to the Veteran's service? The examiner should consider and address the Veteran's in service treatment for contact dermatitis after exposure to fuel. 7. Schedule the Veteran for a VA examination for tuberculosis. The examiner must review the claims file. The examiner is asked to provide a response to the following (each opinion must be supported by rationale): (Continued on the next page) (a.) Does the Veteran have a diagnosis of tuberculosis or any residuals of tuberculosis? (b.) If the examiner identifies a condition, is it at least as likely as not (a 50 percent or greater probability) that it is related to his service? Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.