14-20 190
14-20 190
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served on active duty (1970–1975; 1976–1978) and in the Air National Guard (1985–2005); multiple VA RO decisions (2012–2014) and a December 2015 Board decision were appealed.
- In December 2015 the Board denied service connection for metastatic squamous cell carcinoma of the right lymph node and remanded remaining claims; the Court later granted a joint remand as to the carcinoma issue.
- The Veteran filed a claim for right ear hearing loss (Oct 2012) which the RO denied (June 2013); that June 2013 rating decision became final because no timely NOD was filed.
- New evidence after June 2013 includes a November 2013 VA audiological exam noting conceded in-service noise exposure tied to the Veteran’s MOS and duties.
- The Board found the post-2013 evidence was neither cumulative nor redundant and raised a reasonable possibility of substantiating service connection for right ear hearing loss, so the Board reopened that claim.
- The Board remanded multiple other issues (carcinoma etiology re: HPV and timing of infection, right ear etiology opinion, hypertension diagnosis/etiology, and TDIU) for further development and VA medical opinions and record collection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the final June 2013 denial of right ear hearing loss should be reopened based on new and material evidence | Veteran argues new VA audiology evidence (Nov 2013) shows in-service noise exposure and supports reopening | RO/VA position was the June 2013 denial was final; must still evaluate whether new evidence is new and material | Board held the Nov 2013 evidence is new and material and reopened the right ear hearing loss claim |
| Whether the etiology/timing of HPV-related metastatic squamous cell carcinoma can support service connection | Veteran argues initial HPV infection may have occurred during active duty and thus could support service connection or secondary service connection | VA previously relied on examiner tying cancer to HPV but did not opine when initial HPV infection occurred; VA seeks further development | Board remanded for a VA opinion whether carcinoma is related to HPV and whether initial HPV infection occurred in service |
| Whether Veteran has a current diagnosis of hypertension and whether it is service connected | Veteran submitted private and VA records indicating history/elevated readings and treated with herbal medication; argues hypertension exists and may be service connected | VA finds the record unclear as to an established diagnosis and needs examination and opinion | Board remanded for VA exam to determine diagnosis and etiology of hypertension |
| Whether entitlement to TDIU is warranted | Veteran seeks TDIU; contends service-connected conditions render him unemployable | VA will adjudicate TDIU after medical development; issue is intertwined with remanded conditions | Board remanded TDIU as inextricably intertwined and directed readjudication after development |
Key Cases Cited
- Justus v. Principi, 3 Vet. App. 510 (presumption of credibility for newly submitted evidence when reopening a claim)
- Shade v. Shinseki, 24 Vet. App. 110 (standard for reopening: new and material evidence must raise a reasonable possibility of substantiating the claim)
- Hensley v. Brown, 5 Vet. App. 155 (service connection may be established for hearing loss that first meets VA’s disability definition after service)
- Barnett v. Brown, 83 F.3d 1380 (VA must consider petition to reopen regardless of RO action)
- Harris v. Derwinski, 1 Vet. App. 180 (claims inextricably intertwined may be remanded together)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant’s right to submit additional evidence on remand)