Citation Nr: 1330499 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 99-03 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a digestive disorder, claimed as gastroesophageal reflux disorder (GERD). 2. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for hypertension, claimed as high blood pressure, to include as secondary to herbicide exposure. 5. Entitlement to service connection for psoriasis, to include as secondary to herbicide exposure. 6. Entitlement to service connection for benign prostate hypertrophy, to include as secondary to herbicide exposure. 7. Entitlement to service connection for obstructive sleep apnea, to include as secondary to herbicide exposure. 8. Entitlement to service connection for arthritis of multiple joints, to include as secondary to herbicide exposure. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1969 to May 1971, to include service in the Republic of Vietnam from August 1970 to May 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which, in pertinent part, denied the Veteran's request to reopen his claim for PTSD. The Veteran also appeals from an August 2009 rating decision which denied his requests to reopen his claims for service connection for hearing loss and a digestive disorder. In addition, his claims for service connection for hypertension, psoriasis, arthritis, benign prostatic hypertrophy and obstructive sleep apnea were denied. In November 2000, the Board granted the Veteran's request to reopen his claim for service connection for PTSD and remanded the reopened claim to the RO for further development; the Board denied the reopened claim in a March 2005 decision. The Veteran subsequently appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2006 Order, the Court vacated the March 2005 Board decision and remanded the matter back to the Board for development consistent with the parties' Joint Motion to Vacate and Remand the BVA Decision on Appeal (Joint Motion). This matter was again remanded by the Board in April 2007. In April 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing (Travel Board) at the RO. A hearing transcript has been associated with the claims file. The Board notes that, at the Veteran's request, the record was held open following this hearing for an additional 30 days to allow him to submit additional evidence. The record reflects that the Veteran had previously been represented by Samuel Tummey, a private attorney, with regards to the claims on appeal. This attorney withdrew from representing the Veteran in July 2012 and a new representative has not been appointed. The Board recognizes that the Veteran has claimed entitlement to service connection for GERD and that the RO had previously denied his claim for entitlement to service connection for a digestive disorder in an August 2002 rating decision. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further, the Court has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively--after there has been a finding of fact based upon competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. As the Veteran's claimed diagnosis of GERD is not distinct from his previously denied digestive disorder, and as the Veteran has specified the same symptoms in the course of his previously denied claim, the Board finds that it is appropriate to review the claim for entitlement to service connection for a digestive disorder, as a claim to reopen. In April 2013, the Veteran submitted additional evidence regarding his claim for service connection for obstructive sleep apnea, namely a statement from his mother. The Board inquired as to whether the Veteran waived RO consideration of this evidence in August 2013. Later that month, the Veteran replied that did not waive RO consideration of this evidence and requested that the Board remand his claim for service connection for obstructive sleep apnea back to the agency of original jurisdiction (AOJ) for review of the additional evidence submitted in his appeal. He subsequently submitted another reply in which he indicated that both waived and did not waive RO consideration of this evidence and wrote "please disregard the preference fax." As this evidence has not been reviewed by the AOJ and it is not clear whether the Veteran has waived initial RO consideration, the claim for service connection for obstructive sleep apnea must be remanded for consideration and adjudication in the first instance, as outlined below. See 38 C.F.R. § 20.1304(c) (2012). In August 2013, the Veteran again submitted additional evidence in support of his claims, namely recent laboratory testing results. Although the Veteran did not waive AOJ consideration of this evidence, such a waiver is not required as it is not pertinent to the claims on appeal. Id. A review of the Virtual VA claims processing system reveals VA treatment records dated through February 2012; such records were considered by the Appeals Management Center (AMC) in May 2012 supplemental statement of the case (SSOC). The issues of entitlement service connection for arthritis of multiple joints and obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims on appeal have been accomplished. 2. The claim of entitlement to service connection for a digestive disorder was last denied in an August 2002 rating decision; the Veteran did not appeal this decision. 3. The evidence received since the August 2002 rating decision is duplicative, cumulative, and redundant, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a digestive disorder. 4. The claim of entitlement to service connection for bilateral hearing loss was last denied in a March 1986 Board decision; the Veteran did not appeal this decision. 5. The evidence received since the March 1986 Board decision is duplicative, cumulative, and redundant, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss. 6. Resolving all doubt in favor of the Veteran, the evidence establishes that the Veteran's PTSD is casually related to his service. 7. The Veteran is presumed to have been exposed to Agent Orange based upon his service in the Republic of Vietnam during the Vietnam Era. 8. The evidence does not demonstrate that the Veteran's currently diagnosed hypertension is a result of a disease or injury incurred during his active military service, including his exposure to herbicides, or that it became manifest within one year of his military service discharge. 9. The evidence does not demonstrate that the Veteran's currently diagnosed psoriasis is a result of a disease or injury incurred during his active military service, including his exposure to herbicides, or that it became manifest within one year of his military service discharge. 10. The evidence does not demonstrate that the Veteran's currently diagnosed benign prostate hypertrophy is a result of a disease or injury incurred during his active military service, including his exposure to herbicides, or that it became manifest within one year of his military service discharge. CONCLUSIONS OF LAW 1. The August 2002 rating decision that denied the Veteran's claim of entitlement to service connection for a digestive disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence received since the final August 2002 rating decision, which denied a claim of entitlement to service connection for a digestive disorder, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.1103 (2012). 3. The March 1986 Board decision that denied the Veteran's claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.105 (a) (2012). 4. Evidence received since the final March 1986 Board decision, which denied a claim of entitlement to service connection for bilateral hearing loss, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 6. The criteria for service connection for hypertension have been not met. 38 U.S.C.A. §§ 1110, 1116, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 7. The criteria for service connection for psoriasis have been not met. 38 U.S.C.A. §§ 1110, 1116, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 8. The criteria for service connection for benign prostatic hypertrophy have been not met. 38 U.S.C.A. §§ 1110, 1116, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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. In Kent v. Nicholson, 20 Vet. App. 1(2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. With respect to the Veteran's claim for service connection for PTSD, given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Prior to initial adjudication of the Veteran's claims decided herein, a letter dated in October 2008 fully satisfied the duty to notify provisions as to his claims for service connection as well as his request to reopen a claim for service connection for bilateral hearing loss. In addition, a July 2009 letter provided such notice with regards to the Veteran's request to reopen a claim for service connection for GERD. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. As the Board has concluded that the preponderance of the evidence is against the claims for service connection and the requests to reopen his claims for service connection for bilateral hearing loss and GERD, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). These letters also defined new and material evidence, advised the Veteran of the reasons for the prior denial of the claims of service connection for bilateral hearing loss and a digestive disorder, and noted the evidence needed to substantiate the underlying claim. That correspondence satisfied the notice requirements as defined in Kent, supra. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the service treatment records, service personnel records, Social Security Administration (SSA) records, VA outpatient treatment records, various private treatment records and the VA examination reports. The Board notes that, during his April 2013 hearing, the Veteran identified various providers who had treated him for his claimed disabilities. Such providers included Charity Hospital, Dr. C. E. and Dr. Brown, who the Veteran identified as a VA provider. Records from Dr. C. E. and Charity Hospital are contained in the claims file. In addition, the Board notes that records from Dr. M. Brown, a private physician, are also contained in the claims file. Further, a VA examination is not required as to the claims for service connection for residuals of a bilateral hearing loss and a gastrointestinal disorder as they are not being reopened. See 38 C.F.R. § 3.159(c)(4)(iii). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran has not been afforded a VA examination with regards to his claimed hypertension, psoriasis and benign prostatic hypertrophy. While the Veteran does have currently diagnosed disabilities, there is no evidence in the service treatment records to indicate that the Veteran suffered from hypertension, psoriasis and/or benign prostatic hypertrophy. The Veteran has failed to provide any additional evidence to indicate that his current hypertension, psoriasis and/or benign prostatic hypertrophy were related to his time in active duty service. Accordingly, the Board finds that a VA examination is not in order. See McLendon, supra. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the April 2013 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal. Also, information was solicited regarding the etiology of the Veteran's claimed disorders, to include the Veteran's allegations that they are related to his military service, including his in-service exposure to herbicides. In addition, the Veteran was asked to detail his post-service treatment history and identified his private providers. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeals. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Petitions to Reopen A. Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that psoriasis, obstructive sleep apnea and benign prostatic hypertrophy are not a listed as a chronic diseases under 38 C.F.R. §§ 3.307(a), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Certain chronic disabilities such as organic diseases of the nervous system, which has been interpreted to include hearing loss, as well as cardiovascular-renal disease and arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 are less than 94 percent. See 38 C.F.R. § 3.385. A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Rating actions are final and binding based on evidence on file at the time the claimant 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). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 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 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. 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Digestive Disorder The Veteran's claim for service connection for a digestive disorder was initially denied in an August 2002 rating decision as the evidence of record did not establish a nexus between a current disability and service. Although notified of the August 2002 denial in a letter dated in that same month, the Veteran did not initiate an appeal. See 38 C.F.R. § 20.200. No further communication regarding his claim of entitlement to service connection for a digestive disorder was received until September 2008, when VA received his petition to reopen such claim. The RO's August 2002 denial of the claim is therefore final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In addition, there were no submissions within one year of this rating decision which would warrant consideration under 38 C.F.R. § 3.156(b). The Board also notes that VA had received service personnel records, namely the Veteran's Enlisted Qualification Record, in approximately August 2002. Thus, it appears that these service personnel records were not associated with the claims file at the time of the August 2002 rating decision. In this regard, 38 C.F.R. § 3.156(c) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(I). However, the newly-associated service personnel records are not relevant to the instant claim as they do not address any in-service diagnosis of a digestive disorder or any relationship between the Veteran's current digestive disorder and active service. Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. §3.156(c) is not warranted based upon these service personnel records. In reaching the August 2002 rating decision, the RO considered the Veteran's service treatment records as well as his post-service VA outpatient treatment records and various private treatment records. Service treatment records document the Veteran's complaints of stomach pain and that he was provided Maalox in July 1969; no diagnosis was made as a result of these complaints. Post-service clinical records document the Veteran's complaints of stomach gas beginning in March 1978 as well as his reports of "stomach problems" for which he used Maalox in December 1990. Evidence received since the August 2002 rating decision included the Veteran's SSA records, various private treatment records and VA outpatient treatment records dated through April 2012. The Veteran also provided testimony at an April 2013 hearing. The clinical evidence documents the Veteran's continued complaints of stomach problems, his reports of using Maalox to treat his symptoms and his treatment of GERD. During his April 2013 hearing, the Veteran testified that he experienced gas and acid reflux during service and that he continued to experience these symptoms after service. The evidence received since the August 2002 rating decision, including the Veteran's SSA records and various treatment records, is new evidence as it was not of record at the time of the August 2002 rating decision. However, this evidence is not material as it is essentially duplicative of the evidence of record at the time of the August 2002 rating decision and does not raise a reasonable possibility of substantiating the Veteran's claim. This evidence suggests that the Veteran continued to complain of stomach problems and that he received treatment for GERD but did not link his current digestive disorder to his active duty service. Therefore, the Board finds that such evidence is cumulative and redundant of the evidence of record at the time of the August 2002 rating decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a digestive disorder. The Board also observes that the Veteran continues to contend that his digestive disorder and stomach symptoms are related to his military service. However, such allegations were of record at the time of the August 2002 rating decision and are duplicative. Therefore, the Board must conclude that the evidence added to the record since the prior final denial is cumulative and redundant of the evidence of record at the time of the August 2002 rating decision, does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a digestive disorder and does not trigger any development obligation. Shade, 24 Vet. App. at 110. As such, the Board finds that the evidence received subsequent to the August 2002 rating decision is not new and material and that the requirements to reopen the claim of entitlement to service connection for a digestive disorder have not been met. B. Hearing Loss The Veteran's claim for service connection for bilateral hearing loss was initially denied in a September 1971 rating decision as the evidence of record did not establish a nexus between current left ear hearing loss and service nor did it establish that his preexisting right ear hearing loss was aggravated by service. He later requested that this claim be reopened; an unappealed March 1986 Board decision denied his request. No further communication regarding his claim of entitlement to service connection for bilateral hearing loss was received until July 2008, when VA received his petition to reopen such claim. The Board's April 1986 denial of the claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board also notes that it had received service personnel records, namely the Veteran's Enlisted Qualification Record, in approximately August 2002. Thus, it appears that these service personnel records were not associated with the claims file in March 1986. As previously discussed, 38 C.F.R. § 3.156(c) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). However, the newly-associated service personnel records are not relevant to the instant claim as they do not address any in-service diagnosis of left ear hearing loss, any relationship between the Veteran's current left ear hearing loss and active service or whether his preexisting right ear hearing loss was aggravated by active duty service. Accordingly, reconsideration of the Veteran's claims under 38 C.F.R. §3.156(c) is not warranted based upon these service personnel records. In reaching the March 1986 decision, the Board considered the Veteran's service treatment records as well as his post-service VA outpatient treatment records and various private treatment records. He also provided testimony at a May 1981 Board hearing. Service treatment records include a March 1969 treatment summary which indicated that the Veteran was deaf in his right ear, "probably due to measles as a child." Complaints of hearing difficulties were noted in November 1969, October 1970, November 1970 and March 1971. A March 1971 audiological evaluation found word recognition testing to be 30 percent in the right ear and to be 80 percent in the left ear, as well as the following results, measured in decibels: Hertz 500 1,000 2,000 4,000 Right 100 85 90 85 Left 45 X 45 50 The post-service clinical evidence reflected the Veteran's complaints of hearing difficulties. A July 1971 VA examiner found that the Veteran's left ear was normal and "for all practical purposes" he had a nonfunctioning right ear based on audiological testing. In addition, the Veteran testified during his September 1981 hearing that he was exposed to noise during his combat service and that he was unable to hear out of his right ear. Evidence received since the March 1986 Board decision included the Veteran's SSA records, various private treatment records and VA outpatient treatment records dated through April 2012. The Veteran also provided testimony at an April 2013 hearing. The clinical evidence documents the Veteran's continued complaints of hearing loss or difficulties. During his April 2013 hearing, the Veteran testified that noise from Howitizers and other large guns during service resulted in his hearing loss and that he went into service with hearing loss in one ear due to measles he had as a child. The evidence received since the March 1986 Board decision, including the Veteran's SSA records and various treatment records, is new evidence as it was not of record at the time of the March 1986 Board decision. However, this evidence is not material as it is essentially duplicative of the evidence of record at the time of the March 1986 Board decision and does not raise a reasonable possibility of substantiating the Veteran's claim. This evidence suggests that the Veteran continued to complain of hearing loss but did not link his current left ear hearing loss to his active duty service or suggest that his preexisting right ear hearing loss was aggravated by service. Therefore, the Board finds that such evidence is cumulative and redundant of the evidence of record at the time of the Board decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Board also observes that the Veteran continues to contend that his left ear hearing loss is related to his service and that his preexisting right ear hearing loss was aggravated by service. However, such allegations were of record at the time of the March 1986 Board decision and are duplicative. Therefore, the Board must conclude that the evidence added to the record since the prior final denial is cumulative and redundant of the evidence of record at the time of the March 1986 Board decision, does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss and does not trigger any development obligation. Shade, 24 Vet. App. at 110. As such, the Board finds that the evidence received subsequent to the March 1986 Board decision is not new and material and that the requirements to reopen the claim of entitlement to service connection for bilateral hearing loss have not been met. III. Service Connection A. PTSD The Veteran contends that his current PTSD is the result of his combat service in Vietnam. As regards the claim involving PTSD, the Board notes that service connection requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether a veteran engaged in combat with the enemy. See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and that his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board notes that on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by, in part, liberalizing the evidentiary standard for establishing the occurrence of the required in-service stressor if that stressor is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims such as the Veteran's, which were appealed before July 13, 2010, but not yet decided by the Board. The Veteran's DD-Form 214 reflects that he served as a wireman. As noted in the Introduction Section, the Veteran's DD-Form 214 further confirms that he served in Vietnam and that he had been awarded the Expert (M-14) badge. Based on the DD-Form 214 reflecting service in Vietnam, the Veteran's descriptions of his experiences there, and affording him the benefit of the doubt, the Board finds that the Veteran's claimed stressors regarding witnessing deaths during fire fights while in Vietnam-which have been related to the Veteran's fear of hostile military activity-could be consistent with the places, types, and circumstances of the Veteran's service. The post-service clinical records contain diagnoses of PTSD. A January 2012 VA examiner opined that the Veteran's PTSD was not related to a stressor involving fear of hostile military or terrorist activity as "the Board's March 2005 decision had determined that the Veteran did not engage in combat." However, this Board decision, and the findings contained therein, were vacated by the Court in the June 2006 Joint Motion. Moreover, this opinion was drafted prior to the implementation of the revised provisions of 38 C.F.R. § 3.304, which do not require the verification of individual stressors when the Veteran engaged in combat. The examiner's opinion appears to be based on an inaccurate factual premise, namely that the Veteran did not engage in combat. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). This opinion is therefore being afforded little, if any, probative weight. In contrast, a September 2011 VA examiner found that it was as likely as not that the Veteran's PTSD was caused by the stress of his deployment in Vietnam. This opinion was based upon a review of the Veteran's medical history and contained a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). Therefore, given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for PTSD are met. There is competent and credible evidence with regard to whether there is a nexus between the Veteran's PTSD and service, which consists of the September 2011 VA opinion. As the evidence is at least in equipoise, and resolving all doubt in the Veteran's favor, entitlement to service connection for PTSD is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Hypertension, Psoriasis and Benign Prostatic Hypertrophy The Veteran contends that service connection for hypertension and psoriasis are warranted as he was placed on medication for high blood pressure and that he suffered a skin rash during service. Moreover, he asserts that his hypertension and benign prostatic hypertrophy were caused by his in-service herbicide exposure. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). Hypertension, psoriasis, benign prostatic hypertrophy and obstructive sleep apnea are not identified as conditions for such presumptive service connection is warranted. With respect to the Veteran's contention that his hypertension, psoriasis and/or benign prostatic hypertrophy were caused by his exposure to herbicides, the Board notes that the Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides. However, hypertension, psoriasis and/or benign prostatic hypertrophy are not diseases for which service connection may be granted due to herbicide exposure. Considering the pertinent evidence in light of such authority, the Board finds that service connection for hypertension, psoriasis and/or benign prostatic hypertrophy, as due to herbicide exposure, must be denied on a presumptive basis. The Veteran's service treatment and personnel records were negative for complaints, treatments or diagnoses related to hypertension, psoriasis and/or benign prostatic hypertrophy. The Board notes that the Veteran served in Vietnam and as such, consideration section 1154 is therefore warranted. However, the Veteran has not alleged sustaining these conditions as a result of combat or combat-related injuries, but rather has alleged the in-service onset of hypertension and psoriasis. In addition, he has not alleged an in-service onset for his benign prostatic hypertrophy or that it was a combat related injury but rather that it was caused by herbicide exposure. Accordingly, the Board finds that the Veteran has failed to establish medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury under Hickson/Shedden and he is not afforded the presumption set forth under 38 C.F.R. §§ 3.307, 3.309. See Hickson and Shedden, supra. Notwithstanding the Veteran's purported in-service skin rash and hypertension, the service treatment records contain no findings, complaints or diagnoses related to such conditions. With respect to post-service medical records, the first evidence of a rash was in October 2004, with a reported onset date in 1994 and the first clinical evidence of a benign prostatic hypertrophy was in June 2004. Moreover, the first clinical evidence of hypertension was in February 1980, although a March 1980 private treatment note suggested that he was treated for high blood pressure in 1977. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). As noted above, the Veteran has not been provided an examination to obtain an etiological opinion with regards to these claims. The only evidence in support of the Veteran's claim consists of his own lay statements that he has consistently suffered from hypertension and psoriasis and since his time in active duty service; he has not alleged suffering from benign prostatic hypertrophy since service. However, the Veteran has not been consistent in his assertions regarding the onset and presence of his hypertension and/or psoriasis. In an October 2004 VA initial evaluation, the Veteran reported that he had suffered from a rash to his face, hands and foot intermittently for the past 10 years (i.e. since 1994). With regards to his hypertension, the Veteran reported in a March 1980 private treatment note that he had been told he suffered from high blood pressure in 1977 and that he had been prescribed no medication Such statements were made while the Veteran was seeking treatment for his skin and hypertension symptoms, many years prior to the filing of the instant compensation claims, and are highly probative. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board also notes the Veteran's April 2013 hearing testimony in which he stated that he had been given medication for his high blood pressure during service. In light of these contradictory statements, any current assertions as to experiencing an hypertension and psoriasis during and since service, advanced in furtherance of the appeal, are deemed not credible. Furthermore, as for any direct assertions by the Veteran that there exists a medical relationship between the Veteran's hypertension, psoriasis and/or benign prostatic hypertrophy and his service, the Board finds that no such assertions provide persuasive evidence in support of the claims. The matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the identified individual is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. Finally, hypertension, psoriasis and benign prostatic hypertrophy may not be presumed to have been incurred during service here as they did not manifest to a compensable degree within one year of separation from active duty. For all the foregoing reasons, the claims for service connection for hypertension, psoriasis and benign prostatic hypertrophy must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence not having been received, the claim for service connection for a digestive disorder is not reopened. New and material evidence not having been received, the claim for service connection for hearing loss is not reopened. Service connection for PTSD is granted, subject to the legal authority governing the payment of VA compensation. Service connection for hypertension is denied. Service connection for psoriasis is denied. Service connection for a benign prostatic hypertrophy is denied. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims for service connection for arthritis of multiple joints and obstructive sleep apnea can be properly adjudicated. As detailed in the Introduction, the Veteran submitted additional evidence, namely a statement from his mother, in support of his claim for service connection for obstructive sleep apnea in April 2013. The Board subsequently inquired as to whether the Veteran waived AOJ consideration of this evidence. In August 2013, the Board received conflicting responses from the Veteran, both waiving and declining to waive AOJ consideration of this evidence. The Board therefore has no choice but to remand the Veteran's claims for service connection for obstructive sleep apnea for AOJ consideration of the evidence received in August 2013. As noted above, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159, 3.326(a). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, supra. The Veteran has alleged suffering from arthritis in multiple joints as a result of service, specifically the physical stress of service. Service treatment records document complaints of back pain in June 1969. The Board notes that arthritis is listed as a disability on the Veteran's VA problem list but the specific joint affected is not identified. The Veteran has not been afforded a VA examination to determine the etiology of his claimed disorder. In light of the foregoing evidence, such an examination should be obtained upon remand. See McLendon, supra; 38 U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4). In addition, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. VA treatment records dated through April 2012 are located in the claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran's updated VA treatment records documenting treatment for his claimed joint arthritis and obstructive sleep apnea should be obtained. Such records dated through April 2012 from the VA Medical Center in Jackson are located in the Veteran's claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. Following the completion of the above development, and the receipt of any outstanding records, afford the Veteran for a VA examination to determine the nature and etiology of his claimed multiple joint arthritis found to be present. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (a) Based on the evidence of record, can it be determined with a reasonable degree of medical certainty, that the Veteran has developed joint arthritis? If so, please specify the diagnosis. The examiner should identify all such disorders that have been present at any time since September 2008. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed arthritis of the joints, had its onset during the Veteran's period of active duty service; or, was any such disorder caused by any incident or event that occurred during his period of service, to include his presumed exposure to herbicides? The examiner should comment on the Veteran's documented in-service complaint of back pain in June 1969 as well as the undated private treatment record reflecting the Veteran's complaints of low back pain for two weeks after changing a tire. (c) If arthritis is diagnosed, did the disability manifest to a compensable degree within one year of service discharge (i.e., May 1972)? In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Review the Veteran's claims file and undertake any additional development as to the claim for service connection for obstructive sleep apnea deemed necessary as a result of the new evidence submitted to the Board since the May 2012 supplemental statement of the case. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all of the evidence received since the issuance of the May 2012 supplemental statement of the case. If the claims remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs