Citation Nr: 1309237 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 11-11 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of service connection for a stomach disability. 4. Entitlement to service connection for bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1946 to February 1947. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in June 2010, a statement of the case was issued in March 2011, and a substantive appeal was received in April 2011. The Board notes that the Veteran requested a Board hearing, which was scheduled for February 2013. In a January 2013 statement, the Veteran indicated that he wished to cancel the hearing and to have his case more forward for consideration and a decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a stomach disability (under a merits analysis) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for bilateral hearing loss and tinnitus in August 2005 and notified the Veteran of its decision at that time; while a timely notice of disagreement was filed, the Veteran did not perfect his appeal, nor was new and material evidence received within one year. 2. Certain evidence received since the August 2005 rating decision is new and related to an unestablished fact that is necessary to substantiate the hearing loss and tinnitus claims. 3. The RO denied service connection for a stomach disability in November 2001 and notified the Veteran of its decision at that time; a timely notice of disagreement was not received, nor was new and material evidence received within one year. 4. Certain evidence received since the November 2001 rating decision is new and related to an unestablished fact that is necessary to substantiate the claim. 5. The Veteran's hearing loss and tinnitus disability are not causally related to his active duty service. CONCLUSIONS OF LAW 1. The August 2005 and November 2001 rating decisions are final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received to reopen the claims of service connection for bilateral hearing loss, tinnitus, and a stomach disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). 3. Bilateral hearing loss was not incurred in or aggravated by service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 4. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in December 2009 and January 2010 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in December 2009 and January 2010, which was prior to the May 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claims for service connection. The December 2009 and January 2010 letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. Further, in light of the fact that the Board is reopening the Veteran's claims, there is no need to undertake a further analysis of whether notice was compliant with Kent v. Nicholson, 20 Vet. App. 1 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. Additionally, the Veteran was afforded a VA audiological examination in February 2011. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case as to the hearing loss and tinnitus issues and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. With regard to the stomach disability issue, it is contemplated that further assistance will be required. Additionally, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Legal Criteria The Veteran is claiming entitlement to service connection for hearing loss and tinnitus. The Veteran's original claim for hearing loss and tinnitus was denied by a rating decision in August 2005 on the basis that the Veteran's hearing loss neither occurred in nor was caused by service and because there was no evidence that tinnitus existed. The Veteran filed a notice of disagreement in September 2005 and a statement of the case was issued in May 2006; however, the Veteran did not file a substantive appeal. Moreover, no new and material evidence was received within one year of the August 2005 rating decision. Accordingly, that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In December 2009, the Veteran filed to reopen his hearing loss and tinnitus claims for service connection. A May 2010 rating decision denied these claim, finding that there was not new and material evidence. The Veteran timely filed a notice of disagreement and the present appeal ensued. The RO appears to have reopened the Veteran's hearing loss and tinnitus claims, as reflected in the March 2011 statement of the case. However, the question of whether new and material evidence has been received to reopen a claim must be addressed by the Board regardless of any RO action. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran is also claiming entitlement to service connection for a stomach disability. The Veteran's original claim was denied by rating decision in August 1954 on the basis that the available records were insufficient to indicate the presence of a stomach condition (ulcer) during service or within the presumptive period following service. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within one year. Accordingly, that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In April 2001, the Veteran filed to reopen his claim for service connection for a stomach disability. A November 2001 rating decision denied the claim, finding that no new and material evidence had been received. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within one year. Accordingly, that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran again filed to reopen his claim in January 2010. A May 2010 rating decision denied this claim, again finding that no new and material evidence had been received. The Veteran timely filed a notice of disagreement and was issued a statement of the case in March 2011. He filed a substantive appeal in April 2011. A final decision can be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The underlying claims are ones for service connection. It is therefore appropriate to note at this point that applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss (organic disease of the nervous system) and ulcers, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Hearing Loss and Tinnitus The Board now turns to consideration of whether new and material evidence has been received since the August 2005 rating decision to reopen the claims for hearing loss and tinnitus. If so, these claims will be reopened and the claims considered on the merits. Evidence of record at the time of the August 2005 rating decision consisted of the Veteran's DD-214, which indicated that his military occupational specialty was a truck driver light, in addition to service treatment records (STRs) and treatment records from 1980, 1985-1997 and 1999 through 2005. The Veteran's STRs reflected that the Veteran underwent whisper hearing tests at entrance and separation, receiving a score of 15/15; no complaints, treatment, or diagnoses were made regarding the Veteran's hearing during service. A July 1987 treatment record indicated right ear pain as a result of ear wax. In September 1990, the Veteran reported that his ears felt stopped up. A February 1995 record reflected a diagnosis of Meniere's disease (a disorder of the inner ear that causes spontaneous episodes of vertigo along with fluctuating hearing loss, ringing in the ear, and sometimes a feeling of fullness or pressure in the ear). In April 2003, the Veteran was seen for a one-year follow-up hearing evaluation due to the patient's report of Meniere's disease in the right ear. Pure-tone audiometry of the left ear revealed normal hearing through 500 Hz, sloping to a moderately-severe hearing loss. Word recognition score was poor (40%). In the right ear, pure-tone audiometry revealed a moderate to moderately-severe hearing loss. Word recognition was poor (44%). A diagnosis of moderately-severe high frequency sensorineural hearing loss was provided for the left ear and a diagnosis of moderate to moderately-severe sensorineural hearing loss was provided for the right ear. The examiner noted that these test results indicated a slight decrease in hearing at 4000 Hz in the right ear and no significant changes in hearing in the left ear since the patient's previous evaluation in March 2002. Additional treatments records from 2000 to 2005 show various complaints regarding the Veteran's hearing aids. Evidence received subsequent to the August 2005 rating decision includes additional treatment records, statements from the Veteran regarding in-service noise exposure, and a VA examination. VA treatment records revealed continued complaints relating to the Veteran's hearing aids, including the Veteran's claim that he may have an allergy to the hearing aids, in addition to complaints of ear pain. Additionally, these records revealed a history of hearing loss and Meniere's disease. Significantly, in October 2007, the Veteran reported a negative history of tinnitus. The Veteran was afforded a VA audiological examination in February 2011. The examiner noted an extensive review of the Veteran's claims file and medical history, including that the Veteran reported unprotected military noise exposure to motor pool noises (trucks and jeeps), and from guard duty. The Veteran also reported being exposed to gun fire during basic training. In addition, the Veteran reported occupational noise exposure working in a factory and stated that he did not wear hearing protection until OSHA and his employer later required it. The Veteran denied a history of recreational noise exposure. As for the onset of his hearing problems, the Veteran stated that it was a couple of years ago and attributed the hearing problems to the heat in the Philippines. The Veteran also stated that he was diagnosed with Meniere's disease in 1992. As for tinnitus, the Veteran stated that he currently suffers from constant tinnitus in both ears, but cannot recall the date or event of onset except that it was well before he was diagnosed with Meniere's disease. He stated that the tinnitus in his right ear is far worse than that in his left ear. On examination, puretone threshold testing revealed moderately severe to severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. The examiner stated that the Veteran's tinnitus was as likely as not a symptom associated with the hearing loss. He opined though that the Veteran's hearing loss and tinnitus were less likely than not due to or a result of military acoustic trauma from light trucks. While the examiner stated that the type and configuration of the hearing loss is consistent with noise exposure, it is also consistent with Meniere's disease. Further, the examiner noted that he was unaware of any connection between heat and sensorineural hearing loss (as claimed by the Veteran). The examiner acknowledged that the Veteran's whispered voice tests on entrance and separation were insufficient to properly evaluate the Veteran's hearing, thus, it is possible that the Veteran's exposure to noise in the military motor pool and during basic training could have contributed to his current condition; however, the examiner stated that this was unlikely and instead, the examiner noted the Veteran's significant unprotected occupational noise exposure and Meniere's disease. The Veteran also submitted a statement along with his substantive appeal in April 2011 stating that his exposure to noise in basic training and while in the motorpool without hearing protection had a great deal to do with his hearing loss, which he claimed is continuing to get worse. After considering the evidence submitted subsequent to the August 2005 rating decision in light of the low threshold outlined in Shade, the Board finds that there is new and material evidence to reopen these claims. Such evidence, in the form of a VA examination discussing the Veteran's history of hearing loss and tinnitus in addition to new statements from the Veteran describing his exposure to acoustic trauma during service, is new and relates to an unestablished fact necessary to establish the claims for bilateral hearing loss and tinnitus. As such, the claims for service connection for bilateral hearing loss and tinnitus are reopened. 38 C.F.R. § 3.156(a); Shade, supra. As the claims for hearing loss and tinnitus are reopened, the Board now undertakes an analysis of entitlement to service connection for these disabilities on the merits. The criteria for service connection are stated above. For the purpose of applying the laws administered by VA, impaired hearing will be considered 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 Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385...For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Veteran maintains that his hearing was damaged from the heat in the Philippines and from exposure to acoustic trauma during basic training. The record reflects that the Veteran's hearing loss currently meets the regulatory thresholds to be considered disabling. A February 2011 audiological examination revealed auditory thresholds of greater than 40 decibels for all of the relevant frequencies in each ear. The only remaining question is whether the current hearing loss is related to the Veteran's service. The factual history regarding the Veteran's hearing is described above. The Veteran's STRs show no complaints of, treatments for, or diagnoses of anything pertaining to his ears while in service. Additionally, the Veteran's current statements indicating hearing loss and tinnitus as a result of military noise exposure were made many years after service and are inconsistent with the contemporaneous evidence. In this regard, the Veteran's January 1947 service separation examination shows the Veteran scored a 15/15 bilaterally on whispered voice test. There were no other notations, complaints, treatment, or diagnoses related to the Veteran's ears. This suggests to the Board that the Veteran did not in fact believe he suffered from either hearing loss or tinnitus at the time of separation as it is reasonable to expect that he would have reported such to military medical personnel during his separation examination. The Board acknowledges, however, that the whispered voice test provides a limited indication of hearing health, and the February 2011 VA examiner noted that he did not consider the whisper testing adequate on its own for drawing specific conclusions about the Veteran's hearing acuity. Even considering this fact though, the VA examiner concluded that the Veteran's tinnitus and hearing loss were less likely than not due to or a result of military acoustic trauma. Instead, the examiner noted the Veteran's significant post-service occupational noise exposure working in a factory in which he admitted to not wearing hearing protection until it became required. Here, the Board notes that the Veteran was only in-service for less than one year, whereas his factory work was likely for much longer. Additionally, the examiner pointed out that the Veteran has been diagnosed with Meniere's disease, a disease which can lead to hearing loss and tinnitus. The Veteran admitted that he was diagnosed with Meniere's disease of the right ear in 1992. Treatment records confirm a history of Meniere's disease and diagnosis around this time. The Board finds it particularly probative that the Veteran's hearing problems seemed to occur after receiving a diagnosis of Meniere's disease (and after many years of being exposed to noise in the factory), as reflected in the treatment records; the Veteran received a diagnosis of hearing loss and was fitted with hearing aids. No medical evidence of record contradicts the February 2011 VA examiner's analysis addressing the nature and etiology of the Veteran's current hearing loss and tinnitus, or otherwise relates these disabilities to service. The Board acknowledges that the VA examiner admitted it was possible that the Veteran could have suffered hearing loss and tinnitus from exposure to noise during basic training considering that the Veteran's whispered hearing tests were insufficient; however, he deems this unlikely for the reasons stated above. In addition, the Board notes the Veteran's statement made in his April 2011 substantive appeal explaining that he was exposed to weapons during basic training and while in the motor pool, he was around trucks and equipments 8 hours a day without hearing protection. The Board notes that the Veteran's military specialty was a truck driver light, as reflected on his DD-214. This specialty is one that may be associated with acoustic trauma; thus the Board concedes there may have been exposure to acoustic trauma. But the Board finds that had there been acoustic trauma in service which led to hearing loss or tinnitus, it is likely that the Veteran would have made some mention of these complaints on his separation examination. Further, while the Veteran is competent to report the symptoms he experiences, the Veteran is not competent to report the etiology of his disabilities since this requires medical knowledge. See Barr, 21 Vet. App. at 309. To the extent that the Veteran is competent to report continuing pertinent symptoms during and since service, his credibility is diminished in view of the contemporaneous evidence. Moreover, a medical examiner, with full knowledge of the Veteran's in-service noise exposure and his self-reported history of hearing loss and tinnitus over a long period, was of the opinion that the Veteran's current hearing loss and tinnitus are not causally related to service. The Boards finds the medical opinion to be entitled to more weight than the Veteran's statements made many years after the fact during the course of seeking monetary benefits. The Board acknowledges the language of the Court in Hensley. However, the Board reads that language as basically directing that in a case where there is evidence of some decrease in hearing acuity during service, that consideration be given to a nexus to service. It is noteworthy that the Hensley language appears to envision a situation where the requirements for hearing loss disability are met several years after service, whereas in the present case it appears that the requirements for hearing loss disability were not met for a number of years after service. Although the Board recognizes that audiological testing providing reliable results was not performed in service, the Board again looks to the fact that the Veteran nor an examiner made any reference in service to a problem with the Veteran's ears. The Hensley case also recognized the possibility that the hearing loss might be related to intercurrent causes. In the present case, there is also some evidence of post-service noise exposure, including factory work without use of hearing protection. In other words, the facts of the present case appear to differ somewhat from those in Hensley. As just stated, the post-service medical evidence does not reflect complaints or treatment related to bilateral hearing loss and tinnitus for many years following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1947) and initial contemporaneous documentation of reported symptoms related to bilateral hearing loss and tinnitus in 1990 (over 40 years later). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). Consequently, the one-year presumption of service incurrence for sensorineural hearing loss is not for application here. The Board notes that, while the Veteran has clearly stated that he experienced hearing loss during service, it is somewhat unclear whether the Veteran contends that he specifically experienced tinnitus symptoms during service (see the February 2011 VA examination in which the Veteran stated he cannot recall the onset of tinnitus, but knows it was before he was diagnosed with Meniere's Disease). To any extent that he does assert experiencing in-service tinnitus, the Board notes that such testimony has been deemed to be not credible as it is contradicted by probative contemporaneous evidence in the service separation examination report. Further, an October 2007 treatment record indicated the Veteran reported a negative history of tinnitus. If the Veteran is not asserting that he experienced tinnitus during service, then there is no evidence indicating any continuity of tinnitus symptomatology from the time of service. As the only competent evidence of record indicates that the Veteran's current tinnitus is most likely not related to his in-service acoustic trauma, the preponderance of the evidence is against the claim of entitlement to service connection for tinnitus. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination as to either issue. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is against the Veteran's claims. Stomach Disability Evidence of record at the time of the November 2001 rating decision consisted of the Veteran's STRS which revealed no complaints, treatment, or diagnoses related to the Veteran's stomach. Additionally, a March 1954 treatment record revealed a diagnosis of a peptic ulcer and a hyperirritable stomach. A May 1954 record noted pain in the upper epigastric region relieved by food, which the physician noted was typical ulcer syndrome. Ulcer treatment provided relief, but there was a seasonal return. The physician also noted that x-rays were taken in 1948, which revealed a duodenal ulcer. The physician noted that the Veteran received ulcer treatment on various occasions since that time. The physician did indicate that he was unable to find these records and that the above is from his memory. VA treatment records reveal chronic epigastric pain and a duodenal ulcer in February 1980, as well as a history of gastritis since 1993. Evidence received subsequent to the November 2001 rating decision includes treatment records, in addition to a statement from the Veteran. Treatment records show a history of gastroesophageal reflux disease (GERD) since 1997. Additionally, in August 1997, an exam revealed a deformity of the duodenal bulb and esophageal reflux. In August 1998, following a biopsy, the Veteran received a diagnosis of GERD. In his April 2011 substantive appeal, the Veteran stated that he went to the doctor several times in service for his stomach condition, which is still present and for which he is on daily medication. After considering the evidence submitted subsequent to the November 2001 rating decision in light of the low threshold outlined in Shade, the Board finds that there is new and material evidence to reopen this claim. Such evidence, in the form of a current diagnosis regarding the Veteran's stomach, a history of stomach problems, and the Veteran's statement of continuity of stomach problems since service, is new and relates to an unestablished fact necessary to establish the claim for a stomach disability. As such, the claim for service connection for a stomach disability is reopened. 38 C.F.R. § 3.156(a); Shade, supra. ORDER The claims of service connection for bilateral hearing loss, for tinnitus, and for stomach disability are reopened. To this extent, the appeals are granted. Entitlement to service connection for bilateral hearing loss and tinnitus is not warranted. To this extent, the appeals are denied. REMAND As the decision above reopens the Veteran's claim of service connection for a stomach disability, the analysis proceeds to review under a merits analysis. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the Veteran or no prejudice would result from adjudication of the claim. As the RO has not considered the Veteran's reopened claim of service connection for a stomach disability on the merits in the first instance, and he has not waived his right to such consideration, the Board finds that a remand for such purpose is necessary. Notably, the Veteran has not been afforded a VA examination in connection with this claim. Given the low threshold standard for determining when a VA examination is necessary, the Board finds that an examination in this case is indicated. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should arrange for the Veteran to be examined by an appropriate examiner to determine the nature and likely etiology of his stomach disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Please identify any current stomach disabilities. b) For each identified stomach disability, please clearly state whether it is at least as likely as not (a 50% or higher degree of probability) that the disability was manifested during service or is otherwise caused by the Veteran's service. c) With regard to peptic ulcer disease, is it at least as likely as not (a 50% or higher degree of probability) that such disability was manifested within one year of the Veteran's discharge from service? Please set forth detailed reasons for your opinion with discussion of pertinent service and post-service medical records. 2. After completion of the above and any further development deemed necessary by the AMC/RO, the stomach disability issue should be readjudicated under a merits analysis. If service connection for stomach disability remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs