Citation Nr: 21005617 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-50 888 DATE: February 2, 2021 ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for degenerative joint disease, lumbar spine and the claim is reopened. New and material evidence has been submitted to reopen the claim of entitlement to service connection for degenerative joint disease, cervical spine and the claim is reopened. New and material evidence has not been received to reopen the claim of entitlement to service connection for chronic ear infections and the application to reopen is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus and the claim is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for a hearing loss disability of the right ear and the claim is reopened. Entitlement to service connection for residuals of hypertrophic tonsils is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for degenerative joint disease, lumbar spine, is remanded. Entitlement to service connection for degenerative joint disease, cervical spine, is remanded. Entitlement to service connection for prostate cancer as due to exposure to tactical herbicide agents is remanded. Entitlement to a compensable evaluation for a left ear hearing loss disability is remanded. Entitlement to service connection for a hearing loss disability of the right ear is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) major depressive disorder (MDD), generalized anxiety disorder (GAD) and panic disorder with agoraphobia, is remanded. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an October 2009 rating decision, the RO denied the claims of entitlement to service connection for DJD of the lumbar and cervical spine, no new and material evidence was received within the appeal period and the Veteran did not disagree with those determinations. 2. The evidence received since the October 2009 decision is new and material and raises a reasonable possibility of substantiating the claims of entitlement to service connection for DJD of the lumbar and cervical spine. 3. In a September 2004 rating decision, the RO denied the claim of entitlement to service connection for chronic ear infections, no new and material evidence was received within the appeal period and the Veteran did not disagree with that determination. 4. The evidence received since the September 2004 decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for chronic ear infections. 5. In a June 2004 rating decision, the RO denied the claim of entitlement to service connection for tinnitus, no new and material evidence was received within the appeal period and the Veteran did not disagree with that determination. 6. The evidence received since the June 2004 decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. 7. In a February 2009 rating decision, the RO declined to reopen the claim of entitlement to service connection for a right ear hearing loss disability, and although the Veteran timely disagreed with this decision, he did not perfect an appeal thereof. 8. The evidence received since the February 2009 decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right ear hearing loss disability. 9. The preponderance of the evidence of record is against finding that the Veteran has had hypertrophic tonsils at any time during or approximate to the pendency of the claim. 10. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The October 2009 rating decision declining to reopen the Veteran’s claim of entitlement to service connection for DJD of the lumbar spine is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Since the October 2009 rating decision new and material evidence to reopen the claim for service connection of DJD of the lumbar spine has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The October 2009 rating decision declining to reopen the Veteran’s claim of entitlement to service connection for DJD of the cervical spine is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. Since the October 2009 rating decision new and material evidence to reopen the claim for service connection of DJD of the cervical spine has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The September 2004 rating decision declining to reopen the Veteran’s claim of entitlement to service connection chronic ear infections is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. Since the September 2004 rating decision new and material evidence to reopen the claim for service connection of chronic ear infections has not been received and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The June 2004 rating decision denying entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 8. Since the June 2004 rating decision new and material evidence to reopen the claim for service connection of tinnitus has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The February 2009 rating decision denying entitlement to service connection for a right ear hearing loss disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103 10. Since the February 2009 rating decision new and material evidence to reopen the claim for service connection of a right ear hearing loss disability has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 11. The criteria for entitlement to service connection for residuals, hypertrophic tonsils have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 12. The criteria for service connection of tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the from September 1962 to March 1963, and from January 1967 to January 1969. The Veteran testified before the Board in May 2020. A transcript of the hearing is of record. New and Material A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The phrase raises a reasonable possibility of substantiating the claim does not create a third element for new and material evidence. Rather, it is simply a component of the question of what new and material evidence is and should be informed by the question of whether the evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade at 117-18. New and material evidence is not required as to each previously unproven element of a claim. Id. at 120. Thus, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See Id. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for degenerative joint disease, lumbar spine. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative joint disease, cervical spine. The Veteran’s claims of entitlement to service connection for DJD of the lumbar and cervical spine were initially denied in a July 2005 rating decision that was not appealed. The RO denied the claims on the grounds that the evidence did not establish a nexus between the diagnosed disabilities and service. In several rating decisions thereafter, the latest dated in October 2009, the RO declined to reopen each claim. The present appeal stems from a February 2011 rating in which the RO continued to deny reopening the claims. The claims are reopened. The Veteran asserts that his service aboard the USS Enterprise resulted in his present disabilities of the lumbar and cervical spine. He points out that his service involved heavy labor, and the lifting and carrying of large chains over his shoulder in order to secure aircraft aboard ship. In support of his claim, he submitted an August 2020 private medical opinion that stated that the chain carrying was a “causal factor” for DJD of the cervical and lumbar spine. This is new and material evidence relating to the unestablished nexus element of a service connection claim. Therefore, the claim is reopened. To this extent only are the appeals allowed. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic ear infections, previously claimed as ear disease, otitis media associated with hearing loss. New and material evidence has not been received to reopen his claim of entitlement to chronic ear infections. In an unappealed and final rating decision dated in September 2004, the RO denied entitlement to service connection for chronic ear infections on the grounds that there was no evidence a present disability. No evidence indicating a disability manifested by chronic ear infections has been associated with the record since the September 2004 rating decision. Indeed, the October 2020 private medical opinion submitted by the Veteran rules out any disability in this regard. Accordingly, the claim is not reopened. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. In an unappealed and final rating decision dated in June 2004, the RO denied entitlement to service connection for tinnitus on the grounds that there was no nexus between the tinnitus and service, i.e. noise exposure. In the October 2020 private medical opinion, a doctor states that tinnitus “is service-connected” and states that it is due to in-service noise exposure, which has been conceded. Accordingly, the claim is reopened. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a hearing loss disability of the right ear. In a rating decision of June 2004, the RO denied the claim of entitlement to service connection for a right ear hearing loss disability. The RO denied the claim on the grounds that the evidence did not establish a nexus between the disability and service. In February 2009, the RO declined to reopen the claim for entitlement to service connection for a right ear hearing loss disability. In March 2009, the Veteran filed a Notice of Disagreement (NOD) with respect to this determination. In November 2010, the RO issued a Statement of the Case (SOC). However, the Veteran did not perfect the appeal by filing a Substantive Appeal and the RO took no further action on the matter. Accordingly, the March 2009 rating decision became final. New and material evidence has been received since the February 2009 rating decision. As noted above, the Veteran submitted an October 2020 private medical opinion relating a right ear hearing loss disability to in-service noise exposure, albeit with little rationale. Medical records document a diagnosis per 38 C.F.R. § 3.385. Accordingly, the claim is reopened. Service Connection 6. Entitlement to service connection for residuals, hypertrophic tonsils. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of hypertrophic tonsils and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The July 2012 VA examiner evaluated the Veteran and determined that the Veteran did not have hypertrophic tonsils, despite the notation of “Hypertrophic Tonsils, NCD,” on separation examination in December 1968. Indeed, the Veteran related that he was unsure why the claim was even pending as he had not had any problems with his tonsils in and since service. Moreover, the October 2020 private medical opinion rules out the condition. Accordingly, the claim is denied. 7. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to in-service noise exposure aboard the USS Enterprise. Noise exposure is conceded. The Board concludes that the Veteran has a current disability that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA records reflect reports of a history of tinnitus in and since service. See e.g. May 2003 reflecting bilateral tinnitus since service. Moreover, the October 2020 private medical opinion contains a diagnosis of tinnitus. Accordingly, the Veteran has a current diagnosis of tinnitus. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes an April 2004 VA medical opinion in which the examiner concludes that tinnitus is less likely than not due to the in-service noise exposure. The examiner relied solely on the Veteran’s history in rendering this opinion, and the Veteran reported an onset about 2 to 3 years prior. The evidence in favor of the claim includes a positive October 2020 private medical opinion. The opinion assesses tinnitus and attributes it to exposure to loud noise in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current tinnitus is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for degenerative joint disease, lumbar spine is remanded. 2. Entitlement to service connection for degenerative joint disease, cervical spine is remanded. The Veteran should be afforded a VA examination to address his claims for service connection of a cervical spine disability and lumbar spine disability. As noted above, the question of whether to reopen a claim is consistent with the necessity of obtaining a VA examination to decide a claim. McLendon, supra. As such, a VA examination is necessary to decide the claims. 3. Entitlement to service connection for prostate cancer as due to exposure to tactical herbicide agents is remanded. The Veteran contends that he is entitled to service connection for prostate cancer based on the Agent Orange exposure presumption under the Blue Water Act of 2019. Pub. L. No. 116-23, 133 Stat. 966 (2019). The Act defined service offshore of the Republic of Vietnam as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2(a), 133 Stat. 966 (2019). Accordingly, any veterans that served within 12 nautical miles from the shore of the Republic of Vietnam during the Vietnam era, are presumed to have been exposed to herbicides, including Agent Orange, in the same manner as those Vietnam era veterans who served on land in the Republic of Vietnam during the same time frame. If a veteran was exposed to herbicide agent during active service, service connection is presumed for the following disorders: chloracne or other acneform disease consistent with chloracne; diabetes mellitus; Hodgkin's disease; ischemic heart disease (including but not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease); all chronic B-cell leukemias; multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Prostate cancer is a disability associated with herbicide exposure. The Veteran’s treatment records indicate that he has had prostate cancer with a prostatectomy. Accordingly, the question before the Board is whether the Veteran was stationed aboard the U.S.S. Enterprise at any time during which it was within twelve nautical miles of the coast of Vietnam during the Vietnam era. If so, the Veteran would be presumed to have been exposed to herbicides during service; and, therefore service connection would be presumed for his prostate cancer. Unfortunately, the record does not contain adequate information regarding whether the Veteran's service qualifies under the herbicide exposure presumption. Particularly, it is unclear whether USS Enterprise was within twelve nautical miles of the Republic of Vietnam and while the Veteran served on the ship. Accordingly, a remand is necessary to determine whether the Veteran is entitled to the presumption of in-service herbicide exposure pursuant to the new law. Additionally, in the event that the Veteran's service does not entitle him to the presumption of in-service herbicide exposure, he should nevertheless be afforded a VA examination to address whether there is a medical nexus between his disability and his service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (even when the Veteran is not presumed to have been exposed to herbicide agents during service, that alone does not preclude a finding of service connection on a direct basis). In light of the liberalizing law regarding blue water navy veterans, the matter is remanded to determine whether the Veteran's service was within twelve nautical miles of the Republic of Vietnam and, if necessary, to afford the Veteran a VA examination to obtain a nexus opinion. 4. Entitlement to a compensable evaluation for a left ear hearing loss disability, left ear is remanded. 5. Entitlement to service connection for a hearing loss disability of the right ear is remanded. The Veteran should be afforded a VA examination to address his claim for service connection of a right ear hearing disability. As noted above, the question of whether to reopen a claim is consistent with the necessity of obtaining a VA examination to decide a claim. McLendon, supra. As such, a VA examination is necessary to decide the claim. The Board will defer adjudication of the claim for a compensable evaluation pending the readjudication of the issue of entitlement to service connection for a right ear hearing loss disability because this claim could potentially impact the evaluation of the hearing loss disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 6. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, MDD, GAD and panic disorder with agoraphobia, is remanded. The Veteran was last afforded a VA psychiatric examination in July 2012, which did not result in assessment of PTSD, but rather MDD. The July 2012 VA examiner related the onset of MDD to the Veteran’s divorce in 1987, concluding that the Veteran did not experience a stressor in service. The record also contains assessments of GAD and panic disorder with agoraphobia. A private psychiatrist has opined that MDD and anxiety are attributable to fear of hostile military activity, as well as witnessing an airplane accident onboard the USS Enterprise. See e.g. October 2020 private psychologist’s opinion. The claim is remanded to research the airplane accident as described by the Veteran as he is relating his psychiatric disability to a specific stressor event. Therefore, in furtherance of attempting to assist the Veteran in substantiating his claim, the Board will remand the matter to obtain deck logs for the relevant period. 7. Entitlement to a TDIU is remanded. As any decision with respect to the claims remanded above may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined and therefore adjudication is deferred until adjudication of these claims. Harris, at 183. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed disability of the lumbar spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is DJD of the lumbar spine at least as likely as not related to service, including the Veteran repeatedly carrying heavy chains on the flight deck of the USS Enterprise? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his claimed disability of the cervical spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is DJD of the cervical spine at least as likely as not related to service, including the Veteran repeatedly carrying heavy chains on the flight deck of the USS Enterprise? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Determine whether the Veteran served within twelve nautical miles of the Republic of Vietnam aboard the U.S.S. Enterprise (CVN-65, formerly CVA(N)-65) during the Vietnam era in light of the Blue Water Act of 2019. The inquiry should request the dates that the Veteran served on U.S.S. Enterprise and whether U.S.S. Enterprise was within the twelve nautical mile territorial sea of the Republic of Vietnam during those dates, and if those operations were within twelve nautical miles of the coast of Vietnam. In the event that the Veteran’s service was not within the twelve nautical mile territorial sea of the Republic of Vietnam and the Veteran does not qualify for the herbicide exposure presumption, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s prostate cancer. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment, personnel, and post-service records. The examiner is requested to address whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s prostate cancer is related to an in-service injury, event, or disease, including exposure to tactical herbicide agents, including Agent Orange. The VA examiner is requested to provide a full rationale for all opinions. 4. Schedule the Veteran for a VA audiological examination to determine the presence, severity and etiology of the Veteran’s claimed right ear hearing loss disability. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions regarding noise exposure, as well as the pertinent medical evidence. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that a right ear hearing loss disability began in service or is otherwise attributable to service, including noise exposure experienced in service. In formulating the requested opinions, the examiner is asked to specifically consider and address the Veteran’s service treatment records including audiometric findings The examiner is asked to consider the service audiometric data under the ASA and/or ISO-ANSI standards in accordance with VA policy stating that prior to January 1, 1967, assume the ASA standard was used, between January 1, 1967 and December 31, 1970, consider the data under both ASA and ISO-ANSI standards, and after December 31, 1970, assume the ISO-ANSI standard was used. (Continued on the next page)   All opinions must be accompanied by a complete rationale. 5. Obtain deck logs for the USS Enterprise (CVN-65, formerly CVA(N)-65) from March 1968 through January 1969. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.