Citation Nr: 1039369 Decision Date: 10/21/10 Archive Date: 10/27/10 DOCKET NO. 08-39 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to June 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. At the hearing the Veteran submitted additional evidence with a waiver of RO consideration. FINDINGS OF FACT 1. The Veteran's GERD is caused by medication prescribed for his service connected lumbar spine disability. 2. In an unappealed April 2001 rating decision, the RO denied service connection for tinnitus. 3. Evidence received since the April 2001 rating decision, which is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus and raises a reasonable possibility of substantiating that claim. 4. The Veteran's tinnitus was caused by exposure to loud noise during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 2. The April 2001 rating decision, in which the RO denied service connection for tinnitus, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010). 3. New and material evidence has been received and the claim of service connection for tinnitus must be reopened. 38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This includes notice as to how VA assigns disability ratings and effective dates in the event that the claim is granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006) In a February 2007 letter, the RO provided the Veteran with the notice required by the VCAA, including notice as to how VA assigns disability ratings and effective dates. Even if there is a defect in VA's duty to notify and assist, any such defect is harmless error as the Board, in this decision, grants the benefits sought by the Veteran. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). "To establish a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability if such disability was caused or aggravated by a disease or injury for which service connection has already been established. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). GERD The Veteran contends that he suffers from GERD as the result of medication prescribed to treat his service connected lumbar spine disability. Service connection was established for degenerative disc disease, L5-S1, in an April 2001 rating decision. Review of the evidence demonstrates that service connection for GERD is warranted under the Veteran's asserted theory of entitlement. A January 1990 service treatment record (STR) notes that the Veteran was seen for low back pain. The diagnosis was acute lumbosacral strain and Motrin 800 mg was prescribed. An April 1994 STR notes that the Veteran was seen for lumbar and sacral muscle spasms. He was prescribed Motrin 800 mg. A February 1995 STR notes that the Veteran presented with low back pain. The assessment was "suspected [degenerative joint disease] (DJD) exacerbation." Motrin 800 mg was prescribed. A November 1998 STR notes that the Veteran was seen for recurrent low back spasm. He was prescribed Naproxen 250 mg. A May 1999 STR notes that the Veteran presented with musculoskeletal low back pain and history of DJD. He was prescribed Flexoril. An October 1999 STR notes that the Veteran had a history of low back pain with aggravation. He was prescribed Tramadol. April 2007 through September 2009 treatment records from Lyster Army Community Hospital (ACH) notes that the Veteran was prescribed medication for GERD. His medications also included Gabapentin for low back pain. In a September 2008 letter the Veteran essentially noted that he was prescribed Motrin, muscle relaxers, and pain inhibitors for his service-connected low back disability beginning in 1984 until the present time. He also noted that he was diagnosed with GERD in 2003/2004. A March 2009 radiology report was interpreted as revealing gastroesophageal reflux and gastric fold thickening near the fundus that could reflect focal gastritis. A June 2009 letter from F.M., PA, DAC notes that the Veteran had a long history of back problems with chronic pain (first diagnosed by Army physicians in the 1980's). He noted that the Veteran's treatment included Motrin 800 mg (until the early 2000's) and that he was also treated with Vioxx, Celebrex, Naproxen, Gabapentin, and narcotics as necessary. He noted that the Veteran reported that even though Motrin caused him stomach discomfort, the relief of back pain outweighed the discomfort from his upset stomach and that soon after he retired he began to take over the counter Tum's or Mylanta to relieve his growing stomach distress and acid and gas build-up. He noted that he became the Veteran's treating physician in 2003/2004 and diagnosed GERD and that his current medications included Nexium and Zantac. He summarized that it was his opinion that the Veteran's prolonged used of medicines for back pain more likely than not caused his stomach distress and subsequent GERD. A September 2009 treatment record from Lyster ACH notes that the Veteran had a history of esophageal reflux. The evidence of record establishes that the Veteran has a service-connected low back disability and that he has a current disability of GERD. The remaining criterion for establishing secondary service connection is competent evidence that the GERD was either caused by or aggravated by the low back disability. Notably the Veteran's STRs document that he was prescribed Motrin and muscle relaxers throughout a large portion of his service. The Veteran's testimony was to the effect that he took Motrin and other medications, with increasing stomach discomfort and symptomatology, consistently from the 1980's until the 2000's (when he was diagnosed with GERD). The only competent evidence of record regarding a nexus between the Veteran's low back disability and his GERD, the opinion of F.M., PA, DAC, is to the effect that the medications the Veteran has taken for his low back disability have led to stomach discomfort and (more likely than not) ultimately caused his GERD. As the opinion is by a medical professional competent to offer such, it is probative evidence in this matter. As there is no competent evidence to the contrary, it is persuasive. Accordingly, the factual and legal requirements for establishing secondary service connection for GERD are met. Service connection for GERD is warranted. Tinnitus In an April 2001 rating decision, the RO denied service connection for tinnitus on the basis that tinnitus was not incurred in or aggravated by military service. Notice of that decision and of the Veteran's appellate rights were mailed to the Veteran that same month. He did not appeal that decision; therefore the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. An exception to this general rule is that a final decision may be reopened and allowed if new and material evidence is submitted. 38 U.S.C.A. § 5108. 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 substantiating the claim. See 38 C.F.R. § 3.156(a). Regarding materiality, the newly presented evidence need not be probative of all the elements required to award the claim but that the evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Evidence of record at the time of the April 2001 rating decision included: the Veteran's STRs that were silent for complaints, findings, treatment, or diagnosis relating to tinnitus; a Report of October 2000 VA examination noting a diagnosis of tinnitus; and the Veteran's DD Form-214 noting a military occupation specialty of Aviation Maintenance Technician. Evidence received since the April 2001 rating decision includes: February 2009 outpatient treatment records from Lyster AHC diagnosing tinnitus; and a February 2009 letter from S.A.C., M.D. noting that the Veteran was exposed to loud noise and that in his opinion the Veteran's military noise exposure more likely than not caused his tinnitus. The February 2009 opinion of S.A.C., M.D. is competent evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Thus, the additional evidence received is new and material and is sufficient to reopen the claim of service connection for tinnitus, and the claim is reopened. The Board now turns to the merits of this claim. Service treatment records do not show that the Veteran complained of tinnitus. These include a March 2000 report of medical examination which documents a normal clinical evaluation of the Veteran's ears. In an associated report of medical history, the Veteran indicated, in a preprinted list of medical symptoms, that he either then had or had previously had hearing loss. Of note, there is was no preprinted selection for tinnitus or ringing in the ears. The Board therefore finds the service treatment records to provide only limited evidence in this case, but the report of medical history does indicate to the Board that the Veteran experienced some audiological symptoms during service. Received by VA within one month of separation from active service was an assertion by the Veteran that he experienced tinnitus. An October 2000 VA audiology examination is somewhat ambiguous as to whether tinnitus was diagnosed, or simply reported. The Veteran's DD 214 indicates that he was an aviation maintenance technician during service. He testified that he was exposed to loud noise in this work, including sheet metal work which involved the use of rivet guns as well as working around operating helicopters. August 2010 Board hearing transcript at 10. Of record is a February 2009 treatment record from Lyster AHC documenting that the Veteran had been diagnosed with tinnitus. These notes document the Veteran's description of his tinnitus as high pitched ringing since service. In a letter dated that same month, S.A.C., M.D. explained that noise exposure from rivet guns and sheet metal work during service more likely than not caused the Veteran's tinnitus. This opinion the Board finds probative because it was rendered by a physician, is in agreement with the facts of the Veteran's service, and because the physician provided a cause and effect rationale for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The exposure to loud noise during service, the current diagnosis of tinnitus, and the medical nexus opinion relating inservice noise exposure to tinnitus satisfy the criteria for service connection for tinnitus. Hence, service connection for tinnitus must be granted. ORDER Service connection is granted for GERD. The claim of entitlement to service connection for tinnitus is reopened. Service connection is granted for tinnitus. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs