Citation Nr: 21069487 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-07 926 DATE: November 18, 2021 ORDER New and material evidence having been presented, the request to reopen the claim of entitlement to service connection for a low back disorder is granted. New and material evidence having been presented, the request to reopen the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for a lung disorder is remanded. Entitlement to service connection for melanoma is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. Since a final September 2011 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 a low back disorder. 2. Since a final September 2011 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 tinnitus. 3. Resolving all reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not due to noise exposure during active service. CONCLUSIONS OF LAW 1. Following the prior final denial of September 2011, new and material evidence has been presented to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Following the prior final denial of September 2011, new and material evidence has been presented to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from November 1965 to November 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision issued by an AOJ of the Department of Veterans Affairs (VA). 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) The Board observes that in his March 2019 Form 9 appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge, which was scheduled for September 2021. The Veteran failed to appear for the hearing and failed to explain his absence. To date, he has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence The Veteran's claims of entitlement to service connection for a low back disorder and tinnitus were denied by the AOJ in a September 2011 rating decision. 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 a 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). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disorder In the original September 2011 rating decision, the AOJ denied entitlement to service connection for a low back disorder in part because the Veteran failed to submit evidence indicating a current low back disorder. Since that final decision, the Veteran has submitted private medical records with multiple imaging scans revealing "degenerative changes of the thoracic spine." This evidence is new as it was not before the AOJ at the time of the original denial, and it is relevant as it relates to an unestablished fact needed to establish service connection, in this case a current disability. Therefore, the Board finds that new and material evidence has been received and the claim is reopened. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus The original September 2011 rating decision denied entitlement to service connection based on a lack of evidence indicating a relationship between the Veteran's tinnitus and his active service. In February 2017, the Veteran submitted December 2011 private treatment records in which the treating audiologist noted he reported experiencing ringing in his left ear since the 1970s, as well as past noise exposure. The audiologist's impression was of mild high frequency hearing loss as a result of noise exposure and presbycusis, as well as tinnitus secondary to hearing loss. The Veteran also stated in his claim to reopen that he suffered tinnitus as a result of exposure to combat noise in Vietnam. These pieces of evidence are new as they were not before the AOJ at the time of the original denial and are relevant as they relate to an unestablished fact needed to establish service connection, in this case a nexus between his active service and tinnitus. Therefore, the Board finds that the criteria to reopen the claim of entitlement to service connection for tinnitus have been met. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Certain chronic diseases, such as tinnitus, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Id. at 1337. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran's claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is due to noise exposure during combat inservice. Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran was afforded a VA audiological examination in July 2011, during which he described intermittent buzzing or clicking in his left ear since the early 1970s. He reported that during service in Vietnam his unit was an engineering company, and that he was regularly exposed to firing howitzers. After conducting routine testing, the VA examiner diagnosed him with mild high-frequency sensorineural hearing loss in both ears. The examiner acknowledged the Veteran's inservice noise exposure but opined that his tinnitus was more likely due to some other causal factor, at is first manifested at least a year and a half after service. In his original claim, the Veteran stated his tinnitus began in 1968 or 1969. As discussed above, he has credibly reported inservice noise exposure, while a private treating audiologist opined that his tinnitus was due to his hearing loss, which was due at least in part to noise exposure. The Board acknowledges that the Veteran also reported some limited noise exposure post-service during employment, and that there is probative evidence both for and against the claim. However, as noted above, whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). In this case, the Board finds that the credible lay statements and positive private opinion place the evidence near equipoise, and so it resolves reasonable doubt in favor of the Veteran and grants the claim of entitlement to service connection for tinnitus. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder is remanded. 2. Entitlement to service connection for a lung disorder is remanded. 3. Entitlement to service connection for melanoma is remanded. 4. Entitlement to service connection for a low back disorder is remanded. At a recent VA examination in October 2021, the Veteran appeared to report VA treatment in approximately the late 2000s with recent VA treatment within the year. There are no VA clinic records associated with the claims folder. As such, the Board must remand these claims to obtain VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency). In his January 2017 claim to reopen, the Veteran wrote, "lower back condition (combat in Vietnam)." In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. However, to date, the Veteran has not provided any specifics as to the onset, chronicity or injury pertaining to any of his claimed disabilities. On remand, the Veteran should be specifically advised to provide such information in order to determine whether VA examination is warranted. (continued on the next page) The matters are REMANDED for the following action: 1. Clarify with the Veteran the date(s) and locations of his VA treatment, see VA PTSD examination report dated October 2021, and obtain all VA clinic records. 2. Advise the Veteran in writing of his need to provide specific information as to the onset, chronicity, injury and/or other relevant information pertaining to any of his claimed disabilities. 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.