Citation Nr: 21007411 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-31 816 DATE: February 9, 2021 ORDER Entitlement to service connection for residuals, fracture left tibia and fibula, midshaft is dismissed. Entitlement to service connection for neck scars is dismissed. Entitlement to service connection for bilateral knee degenerative joint disease is dismissed. Entitlement to service connection for bilateral ankle degenerative joint disease is dismissed Entitlement to service connection for a left shoulder disability is dismissed. Entitlement to service connection for a right shoulder disability is dismissed. Entitlement to service connection for lumbar fusion is dismissed. The claim to reopen the claim to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for medullary thyroid cancer is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in his matter, service connection for residuals, fracture left tibia and fibula, midshaft was granted in a previous rating decision. 2. Prior to the promulgation of a decision in his matter, service connection for neck scars was granted in a previous rating decision. 3. Prior to the promulgation of a decision in his matter, service connection for bilateral knee degenerative changes was granted in a previous rating decision. 4. Prior to the promulgation of a decision in his matter, service connection for bilateral ankle degenerative changes was granted in a previous rating decision. 5. Prior to the promulgation of a decision in his matter, the claim to a left shoulder disability was withdrawn at the Veteran’s December 2020 hearing. 6. Prior to the promulgation of a decision in his matter, the claim to a right shoulder disability was withdrawn at the Veteran’s December 2020 hearing. 7. Prior to the promulgation of a decision in his matter, the claim to a spinal fusion disability was withdrawn at the Veteran’s December 2020 hearing. 8. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. 9. The Veteran’s tinnitus was incurred in or due to his time in service. 10. The Veteran’s hearing loss was not incurred in or due to his time in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim to service connection for residuals, fracture left tibia and fibula, midshaft have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim to service connection for neck scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim to service connection for bilateral knee degenerative joint disease have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. he criteria for withdrawal of the claim to service connection for bilateral ankle degenerative joint disease have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim to service connection for a left shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the claim to service connection for a right shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the claim to service connection for a lumbar fusion disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for the establishment of service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for the establishment of service connection for bilateral hearing loss not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1975 to May 1978 and from February 1981 to September 1986. The Veteran had a hearing before the undersigned Veterans Law Judge in December 2020. A transcript has been associated with the file. Dismissed Claims Regarding the Veteran’s claim to service connection for residuals, fracture left tibia and fibula, midshaft, neck scars, bilateral knee degenerative changes, and bilateral ankle degenerative changes, the RO granted service connection in a previous rating decision. As the full benefit sought on appeal was granted, further appellate review is mood. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, in the absence of any justiciable question, the Board does not have jurisdiction over the appeal, and the appeal is dismissed. The veteran or the veteran’s representative may withdraw an appeal as to any or all issues on appeal. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.205. In his December 2020 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim to service connection for a left and right shoulder disability and a spinal fusion disability. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. New and Material Evidence Claim Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 means 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). The Veteran was denied service connection for tinnitus in an October 1996 rating decision because there was no evidence of in-service tinnitus or exposure to acoustic trauma. The Veteran was denied reopening of his claim in a December 2013 rating decision because no new and material evidence had been received. Relevant evidence of record prior to the previous final denial included examinations and treatment records. Relevant evidence of record since the previous final denial includes treatment records, statements by the Veteran, a hearing transcript, service treatment records (STRs), and military personnel records. Because this evidence is new and material in that it tends to raise a reasonable possibility of substantiating the claim, the claim will be reopened. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends he has bilateral hearing loss and tinnitus that were incurred in and due to his time in service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz 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. The threshold for normal hearing is 0 to 20 decibels. The Veteran has been diagnosed with bilateral hearing loss for VA purposes. The Veteran’s STRs show the Veteran had multiple audiograms while in service. However, while some minor shifts in hearing levels were detected, they were all within normal limits for VA purposes. (See e.g. December 1977, March 1983, August 1986 STR audiograms.) The Veteran had an examination for his bilateral hearing loss in November 2013. The Veteran was found to have hearing loss for VA purposes. The examiner reviewed the Veteran’s file and based upon this and the Veteran’s report, concluded the Veteran was exposed to hazardous noise levels while in service, but that at separation, the Veteran did not have a significant threshold shift beyond normal variability/normal progression while in service. The examiner concluded it was less likely than not the Veteran’s hearing loss was due to his time in service. The examiner also relied on medical literature in forming his opinion, saying that there is not sufficient evidence to say, “whether permanent noise induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” Another medical study reiterated that it was “unlikely that such delayed effects occur.” Regarding the Veteran’s claim to service connection for tinnitus, the Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of his disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report that he was exposed to loud noise during service. See generally Charles v. Principi, 16 Vet. App. 370, 374 (2002). Once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds the Veteran’s statements about his exposure to acoustic trauma and being exposed to loud noises and a high whining sound in his ears (see December 2020 hearing transcript), along with his personnel records indicating his military occupational specialty (MOS) required him to work on aircraft has some tendency to make a nexus more likely than it would be without such an assertion. See Lynch v. Ne. Reg’l Commuter R.R. Corp., 700 F.3d 906, 915 (7th Cir. 2012) (“[E]xpert testimony may be necessary where some special expertise is necessary to draw a causal inference because of its esoteric nature, but that in general the causal sequence can be inferred from circumstantial evidence, expert testimony, or common knowledge.”); Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695-96 (1st Cir. 1987) (expert testimony not required if the connection between the negligence and the injury is fairly self-evident, such as that a broken leg would result from being struck by a motor vehicle). The November 2013 examiner also conceded the Veteran was exposed to hazardous noise while in service. The Board finds the Veteran’s account of his noise exposure while in service to be competent, credible, and persuasive. There is a subjective nature to this disability. In light of the above, the Board finds the evidence is at least in equipoise for the Veteran’s claim to service connection for tinnitus. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the claim to service connection for bilateral hearing loss, the Board acknowledges the Veteran’s statements that he believes his hearing loss was incurred in and due to his time in service, to include his conceded exposure to louse noise. The Board also recognizes the Veteran continues to seek medical treatment for his condition and that he sometimes has difficulty hearing people. However, while the Veteran is competent to report on his symptoms of a disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical condition, which is not one like tinnitus that can be determined based upon lay evidence alone. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the examination of record to be adequate because the examiner reviewed the Veteran’s file, saw him in person, considered the Veteran’s statements about the etiology of his hearing loss, and offered an opinion backed by an explanation and medical literature. The examiner’s opinion regarding this issue was very clear and provides highly probative evidence against this claim. Regarding the tinnitus issue, less so given the nature of the noise exposure. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that was denied above that the Board cannot, unfortunately, ignore, providing a clear basis for the decision. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Board finds a remand is necessary in order to properly adjudicate the Veteran’s claim to thyroid cancer, to include on a direct and presumptive basis. The Veteran contends his thyroid cancer was incurred during his time in service. In his December 2020 hearing, the Veteran stated that he was an atomic demolitions munition technician and that he carried these weapons in his arms and drove the larger weapons. The Veteran said when he inspected the weapons, he was not issued a dosimeter. The Veteran worked on aircraft that carried nuclear weapons, worked next to a radar shop, and did inspections of atomic munitions. In addition to his exposure to radiation, the Veteran said he had symptoms while in service of a swollen neck, fatigue, racing pulse, lack of energy, and weight gain. In April 2013, the Veteran said he was exposed to radiation while working as a small and medium nuclear weapons tech. The Veteran said that sometimes during his time in service, his neck would swell up to the point that swallowing was difficult and later, had a large tumor removed from his neck. The Veteran also said he was exposed to radiation as an aircraft instrument tech where he was exposed to radar fallout from aircraft that he was in contact with. The Veteran said he was also exposed to live nuclear weapons having to repair instrument systems and loading live weapons on the alert launch pads. The Veteran’s military personnel file confirms that the Veteran had time working on, inspecting, and fixing aircraft and medical records confirm he had a tumor removed from his neck in 1978. In August 2013, the Chief of Radiological Health Operations submitted a statement regarding the Veteran’s radiation exposure. The Chief noted that the Veteran did have potential for exposure but that he was unable to determine what specific exposure may have resulted for the Veteran. The Chief said that over 46,000 dosimetric readings were retrieved for the Veteran’s MOS and that about five percent of them had exposure to any measurable dose and only.1 percent had lifetime doses greater than.300 rem. The Chief noted the average annual exposure for people in the U.S. was approximately.620 rem. The Chief said that the consensus of scientific advisory bodies is that “there are no long-term effects (including cancer) from low-level exposures to radiofrequency radiation.” The Veteran has not had an examination regarding the etiology of his thyroid cancer and whether his exposure to those levels of radiation could cause such a cancer. The Board finds there is sufficient evidence to warrant an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate VA examination for his thyroid cancer. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s thyroid cancer was incurred during the Veteran’s service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s thyroid cancer was aggravated beyond its natural progression by any of his service-connected disabilities. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s thyroid cancer is proximately due to any of his service-connected disabilities. (d) Whether it is at least as likely as not (a 50 percent or greater probability) the levels of radiation the Veteran was exposed to while in service caused his thyroid cancer. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran’s representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.