Citation Nr: 21069993 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-42 246 DATE: November 22, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been presented, the claim of entitlement to service connection for tinnitus is reopened. New and material evidence having been presented, the claim of entitlement to service connection for squamous cell carcinoma of the tonsil (tonsil cancer) is reopened. To this limited extent only, the appeal of that issue is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for tonsil cancer is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for bilateral hearing loss was denied in a January 2014 rating decision that was not appealed; no further evidence relevant to this service connection claim was submitted for a period of one year following the January 2014 decision. 2. Evidence relevant to the claim for bilateral hearing loss was submitted since the January 2014 rating decision and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss. 3. The Veteran's claim of service connection for tinnitus was denied in a January 2014 rating decision that was not appealed; no further evidence relevant to this service connection claim was submitted for a period of one year following the January 2014 decision. 4. Evidence relevant to the claim for tinnitus was submitted since the January 2014 rating decision and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for tinnitus. 5. The Veteran's claim of service connection for tonsil cancer was denied in a June 1996 rating decision that was not appealed; no further evidence relevant to this service connection claim was submitted for a period of one year following the June 1996 decision. 6. Evidence relevant to the claim for tonsil cancer was submitted since the June 1996 rating decision and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for tonsil cancer. 7. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to exposure to hazardous noise during service. 8. The Veteran's current tinnitus was at least as likely as not incurred during active service and has continued since service. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the previously denied claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for reopening the previously denied claim of entitlement to service connection for tonsil cancer have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 5. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1970, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a hearing before the undersigned. In January 2021, the Veteran was notified that, due to audio malfunctions, a complete transcript of the proceedings was not obtained. The Veteran was offered the opportunity to request another hearing. In February 2021, the Veteran responded that he did not wish to appear at another hearing and requested that his case be considered on the evidence of record. Since the issuance of the statement of the case, additional evidence has been received by the Board. Because this evidence was submitted by the Veteran and he filed his substantive appeal after February 2, 2013, waiver of initial Agency of Original Jurisdiction (AOJ) review of this evidence is presumed. 38 U.S.C. § 7105(e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became 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; 38 C.F.R. § 3.156. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, a substantive appeal is filed within 60 days of the issuance of a statement of the case, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 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. 38 C.F.R. § 3.156(a). 1. New and material evidence having been presented, the claim of entitlement to service connection for bilateral hearing loss is reopened. The Veteran filed his initial claim of service connection for bilateral hearing loss in February 2012. In an April 2012 rating decision the RO denied service connection for bilateral hearing loss because there was no current disability. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the April 2012 rating decision. Thus, the April 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). The Veteran filed a claim to reopen his claim for service connection for bilateral hearing loss in May 2013. In a January 2014 rating decision, the RO again found that the Veteran did not have hearing loss as defined in 38 U.S.C. § 3.385. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of the January 2014 rating decision. Thus, the January 2014 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for bilateral hearing loss. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the January 2014 rating decision, the Veteran submitted a private audiogram which establishes that he has bilateral hearing loss pursuant to 38 U.S.C. § 3.385, and an opinion from a private clinician that the Veteran's bilateral hearing loss is, at least in part, due to his in-service noise exposure. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claim of service connection for bilateral hearing loss has been received in this case, and the claim is reopened. 2. New and material evidence having been presented, the claim of entitlement to service connection for tinnitus is reopened. The Veteran filed his initial claim of service connection for tinnitus in February 2012. In an April 2012 rating decision the RO denied service connection for tinnitus because no nexus was found. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the April 2012 rating decision. Thus, the April 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). The Veteran filed a claim to reopen his claim for service connection for tinnitus in May 2013. In a January 2014 rating decision, the RO again found that there was no nexus between the Veteran's tinnitus and his time in service. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of the January 2014 rating decision. Thus, the January 2014 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for tinnitus. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the January 2014 rating decision, the Veteran testified at a Board hearing in August 2020 that he first began experiencing tinnitus in service. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claim of service connection for tinnitus has been received in this case, and the claim is reopened. 3. New and material evidence having been presented, the claim of entitlement to service connection for tonsil cancer is reopened. To this limited extent only, the appeal of that issue is granted. The Veteran filed his initial claim of service connection for tonsil cancer in January 1996. In a June 1996 rating decision the RO denied service connection for tonsil cancer because no nexus was found between the Veteran's tonsil cancer and his in-service exposure to herbicide agents. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the June 1996 rating decision. Thus, the June 1996 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for tonsil cancer. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the June 1996 rating decision, the Veteran submitted letters from private physicians suggesting a nexus between the Veteran's tonsil cancer and his in-service exposure to herbicide agents. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claim of service connection for tonsil cancer has been received in this case, and the claim is reopened. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. For chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus and bilateral hearing loss are chronic diseases. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (section 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). 4. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts his current hearing loss disability is the result of hazardous noise exposure during service. For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A July 2016 private treatment record confirms the Veteran has bilateral hearing loss. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (holding that the Board may interpret graphical representations of audiometric data as a factual finding). In July 2016, a private audiologist, B.N., opined that some degree of the Veteran's bilateral high frequency sensorineural loss is related to his excessive noise exposure while in the military. The private audiologist went on to state that it is impossible, however, to determine the exact degree caused by the Veteran's in-service noise exposure as it is also likely that civilian noise exposure, possible genetics, and certainly early signs of presbycusis are contributing factors. There is no evidence in the record to contradict the private audiologist's opinion. Thus, the Board finds the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss disability is the result of the asserted military noise exposure in this case. Resolving reasonable doubt in the Veteran's favor, the Board finds service connection for bilateral hearing loss is warranted. 5. Entitlement to service connection for tinnitus is granted. During the August 2020 Board hearing, the Veteran testified that the ringing in his ears started in 1968, while he was in service. The Veteran's lay reports are sufficient to establish that he has tinnitus, as well as continuity of symptomatology since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board also notes that, in July 2016, a private audiologist, B.N., opined that some degree of the Veteran's tinnitus is related to his excessive noise exposure while in the military. The Board acknowledges that, in November 2013, a VA audiologist stated that the Veteran's tinnitus was less likely than not caused by or a result of the Veteran's in-service noise exposure because the Veteran reported that his tinnitus began in 2000. However, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus began during military service and has continued ever since. By resolving any reasonable doubt in favor of the Veteran, the Board finds service connection for tinnitus is warranted. REASONS FOR REMAND Entitlement to service connection for tonsil cancer is remanded. The Veteran served in Vietnam and his exposure to herbicide agents is conceded. Service connection for certain diseases enumerated in 38 C.F.R. § 3.309(e) may be established as presumptively due to exposure to herbicide agents during service. 38 C.F.R. § 3.307(a)(6). Squamous cell carcinoma of the tonsils is not one of the conditions presumptively linked to this exposure. See 38 C.F.R. § 3.309(e). However, the presumptive provisions related to herbicide exposure are not intended to limit service connection on a direct basis when the evidence establishes a nexus between a current disability and herbicide exposure in service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Here, the Veteran has submitted a letter from Dr. J.D.E., dated August 2016, which reflects that it is plausible that the Veteran's tonsil cancer is linked to his in-service exposure to herbicide agents. A letter from Dr. R.L.F, dated September 2020, reflects that the Veteran had cancer of the tonsil, arising from the pharynx, which is part of the upper respiratory tract, and herbicide agents are known to cause malignancies within the upper respiratory tract. The August 2016 opinion from Dr. J.D.E. and the September 2020 opinion from Dr. R.L.F are not sufficient to establish service connection because the statements that (1) it is plausible that the Veteran's tonsil cancer is linked to his exposure to herbicide agents during service and (2) the Veteran's tonsil cancer arose from the pharynx, which is part of the upper respiratory tract, and herbicide agents are known to cause malignancies within the upper respiratory tract, do not address whether the Veteran's in-service exposure to herbicide agents was at least as likely as not the cause of his tonsil cancer. For these reasons, the Board finds that the August 2016 and September 2020 opinions, by themselves, are inadequate to support finding a nexus between the Veteran's tonsil cancer and his conceded exposure to herbicide agents. When a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. Savage v. Shinseki, 24 Vet. App. 259, 268-69 (2011). The Board finds the AOJ should seek additional information from Dr. J.D.E. and Dr. R.L.F. This matter is REMANDED for the following action: Seek clarifying medical opinions from Dr. J.D.E. and Dr. R.L.F. that include rationales to support the conclusion that the Veteran's squamous cell carcinoma of the tonsil is at least as likely as not related to or caused by his exposure to herbicide agents during his military service. All efforts to obtain the requested addendums must be documented in the claims file. If an addendum cannot be obtained from Dr. J.D.E. and/or Dr. R.J.F., a formal finding to this effect must be associated with the claims file. If necessary, obtain a new opinion, preferably with an examiner who has not previously examined the Veteran, on the likelihood of a relationship between the Veteran's in-service exposure to herbicide agents and his squamous cell carcinoma of the tonsil. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's squamous cell carcinoma of the tonsil began in or was otherwise caused by the Veteran's active service, including his exposure to herbicides. In providing this opinion, the examiner must specifically consider and comment on (1) the Veteran's testimony that clinicians have told him that his squamous cell carcinoma of the tonsil is due to his in-service exposure to herbicides, (2) the August 2016 letter from Dr. J.D.E., and (3) the September 2020 letter from Dr. R.L.F. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.