Citation Nr: 21006387 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-62 979 DATE: February 4, 2021 ORDER Reopening of a previously denied claim for service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus type II (DMII) claimed as due to herbicide exposure is remanded. Entitlement to service connection for prostate cancer claimed as due to herbicide exposure is remanded. FINDINGS OF FACT 1. A September 2006 rating decision denied service connection for bilateral hearing loss on the grounds that no nexus to service was shown. 2. Evidence received since the final September 2006 rating decision is new and material and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. The Veteran’s currently diagnosed tinnitus manifested to a compensable degree within a year of discharge from active duty service. CONCLUSIONS OF LAW 1. A September 2006 rating decision denying service connection for hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss disability. 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, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from April 1964 to March 1966. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran’s representative did not appear, but the Veteran elected to proceed in their absence after being fully informed of the elements of his claims, and with the assistance of the VLJ. Additionally, the Veteran’s son testified and provided Spanish translation for his father, who speaks limited English. New and Material Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The RO previously denied the claim for service connection for bilateral hearing loss in an unappealed and final September 2006 decision, finding that the Veteran’s hearing loss was not related to his military service. Since that time the Veteran reported that he had difficulty hearing since active service and still suffers from recurrent symptoms. His statement is new and material as it was not of record at the time of the prior final rating decision and indicates a relationship between current hearing loss and service, a missing element of service connection at the time of the prior final denial. The claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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 or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Tinnitus The Veteran in this case is diagnosed with tinnitus, a disability capable of lay observation and diagnosis. Service treatment records (STRs) were silent for any complaints of or diagnosis of tinnitus. The February 1966 separation examination report was normal, and the Veteran wrote that he was in “well condition.” Post service treatment records indicated that the Veteran denied any ear problems to include tinnitus. During the August 2006 VA audiology examination, the Veteran did not report tinnitus at the time of the examination, though the Board notes the condition was not claimed at the time and was not the subject of the examination. In December 2020, the Veteran testified that he had noise exposure from the firing range during training, both in basic and in periodic qualifications. He stated that he noticed ringing in his ears immediately after service, upon returning to Puerto Rico. After a careful review of all the evidence, lay and medical, the Board finds that the Veteran has a current diagnosis of tinnitus that is related to his service. The Veteran was exposed to noise in service, and competently and credibly reports the onset of tinnitus in or immediately after service. The Board recognizes that there is a dearth of documented complaints of tinnitus since service, and in fact between 2006 and 2020 the Veteran is noted to have repeatedly denied the presence of tinnitus to his primary care physician. However, that doctor also noted the Veteran to be negative with regard to hearing loss, the existence of which is well documented since at least 2006. The tinnitus is not constant, and so may not have been a “current” complaint when the Veteran has been treated for other ear complaints, and hence was not mentioned or inquired after. In testimony, it appears in fact that the tinnitus episodes are infrequent. The Board does not find adequate reason to challenge the Veteran’s competent reports of tinnitus despite his negative responses in the past in light of the clear problems with the medical observations. Significantly, the Board finds that Veteran’s assertions that his tinnitus began within a year of separation to be both competent and credible. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that, based on competent and credible evidence that his tinnitus manifested to a compensable degree within one-year of separation, presumptive service connection for tinnitus is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Hearing loss The Board finds that the Veteran should be provided a new VA examination for his bilateral hearing loss. Although the Veteran was afforded a VA audiological examination in August 2006 no VA opinion was rendered. Additionally, the Veteran testified that he noticed hearing problems within one year of separating from service. Given the Veteran’s statements and lack of medical opinion of record, a new VA audiological examination is required. DMII and Prostate Cancer The Veteran asserts that his DMII and prostate cancer was related to his exposure to herbicide agents while stationed at Okinawa. The Veteran did not assert, nor did the evidence of record reflect, service in the Thailand or the Republic of Vietnam. Instead, he argues that he had “secondhand” exposure through the men and equipment rotating through Okinawa from Vietnam. The Veteran cleaned equipment and dealt with personnel coming from areas herbicide was sprayed. He also stated that he received and managed barrels in which he believed herbicides had been stored. In September 2017, the service department, through a PIES response, indicated there were no records showing the Veteran was exposed to herbicides. However, the specific allegation regarding the handling of barrels containing herbicides have not been addressed. Further development as to that allegation is required. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Contact the Veteran and obtain information to develop his claimed exposure to herbicide agents. This information should include, but is not limited to, dates, location and nature of exposure. Upon obtaining this information, attempt to verify the Veteran’s alleged herbicide exposure. The allegation that barrels used for herbicide shipped through Okinawa must be specifically addressed. 3. Schedule the Veteran for a VA examination concerning the nature and etiology of his bilateral hearing loss. The claims file must be made available for review. The examiner must opine whether it is at least as likely as not that any bilateral hearing loss disability is caused or aggravated by active service. Lay statements regarding the onset of hearing difficulty must be addressed. The examiner should also consider the above grant of service connection for tinnitus. 4. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.