Citation Nr: 1335860 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-18 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for chest pain. 2. Whether new and material evidence has been received to reopen a claim for service connection for a gastrointestinal (GI) disability. 3. Entitlement to service connection for arthritis, to include the hands, shoulders, and elbows. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for a heart disability, also claimed as hypertension. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from October 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which denied service connection for arthritis and found that new and material evidence had not been received to reopen claims for service connection for bilateral hearing loss; for chest pain; for a stomach problem or gastrointestinal disorder; and for a heart condition. On appeal, the Board subsequently reopened the service connection claims for bilateral hearing loss and for a heart disability and remanded these reopened claims along with the other claims on appeal for further development. The claims have been recharacterized on appeal to reflect the medical evidence of record. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issues of service connection for arthritis and for a heart disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In January 1996, the Board denied service connection for a disability manifested by chest pain; and the decision is final. 2. Evidence associated with the claims file since the January 1996 denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the service connection claim for a disability manifested by chest pain, is cumulative or redundant of evidence previously received, and does not raise a reasonable possibility of substantiating the claim. 3. In January 1996, the Board denied service connection for a gastrointestinal disability; and the decision is final. 4. Evidence associated with the claims file since the January 1996 denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the service connection claim for a gastrointestinal disability, is cumulative or redundant of evidence previously received, and does not raise a reasonable possibility of substantiating the claim. 5. The evidence of record does not show that the Veteran has a current bilateral hearing loss disability as defined by VA regulations. CONCLUSIONS OF LAW 1. The January 1996 Board decision that denied service connection for a disability manifested by chest pain and for a gastrointestinal disability is final. 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. § 20.1100 (2013). 2. As evidence received since the Board's January 1996 denial is not new and material, the criteria for reopening the Veteran's service connection claim for a disability manifested by chest pain are not met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. As evidence received since the Board's January 1996 denial is not new and material, the criteria for reopening the Veteran's service connection claim for a gastrointestinal disability are not met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been satisfied by information provided to the Veteran in letters from the RO dated in August 2008 and May 2010. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); and Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the correspondence dated in August 2008 and May 2010. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. A review of the notice letters shows that the RO notified the Veteran that he would need to submit new and material evidence as he had been previously denied service connection for a disability manifested by chest pain and for a gastrointestinal disorder. These letters specifically defined new and material evidence, although both misidentified the date and source of the last prior final decision of record. Nevertheless, the letters advised the Veteran of why the claim was denied earlier and what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Accordingly, the Board finds that VA has complied with its duties to notify. Kent v. Nicholson, 20 Vet. App. 1 (2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. 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). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. VA also has a duty to assist a veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In compliance with its duty to assist, the RO associated the Veteran's service treatment records and identified VA and private treatment records with the claims file. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. The Board notes that the Veteran has received one or more VA audiological examinations in the past and that his representative had recently requested a new VA audiological examination. The Board's review of the September 2008 audiogram reveals that the pure tone threshold levels clearly show that the Veteran does not have a current bilateral hearing loss disability under VA regulations. While the Board has considered the Veteran's complaints about his difficulty hearing, his statements do not by themselves indicate that his hearing loss would now meet VA requirements and there is no competent medical evidence to support such a conclusion. Therefore, the Board finds no merit in these complaints and declines to order a new audiological examination for the reasons advanced by the Veteran. The Board finds that the available medical evidence is sufficient for an adequate determination of the claims decided herein. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. New and Material Evidence In this case, the Veteran asserts that he has submitted new and material evidence to reopen his claims of entitlement to service connection for chest pain and for a gastrointestinal disability and that the evidence is otherwise sufficient to award service connection for these disabilities. As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Chest Pain The Veteran's claim for service connection for a disability manifested by chest pain was previously considered and denied by the RO in rating decisions dated in August 1991 and September 1991. The Veteran timely appealed the denial and the Board remanded the claim for further development in a July 1993 decision. The Veteran's claim for service connection for a disability manifested by chest pain was again considered and denied by the RO in rating decisions dated in November 1994 and July 1995. The Veteran timely appealed the denial. The Board then denied the claim in January 1996 finding that there was no medical evidence of a nexus between any current disability and any in-service disease or injury. This decision is final. 38 C.F.R. § 20.1100. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final decision. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. At the time of the January 1996 Board decision that denied service connection for a disability manifested by chest pain, the evidence of record consisted of service treatment records; private medical records from Western Clinic dated from February 1983 to June 1988; private medical records from Group Health dated from April 1990 to January 1992; a May 1995 VA examination; a June 1995 VA examination; and written submissions from the Veteran and his representative. Service treatment records reflect a complaint of chest pain for two days in February 1978 when the Veteran was diagnosed with a viral syndrome. Private medical records show that post service, the Veteran frequently complained of chest pains. For example, an October 1983 private medical record noted left anterior chest pain while eating. On examination, no chest wall tenderness was noted. An October 1984 private medical record noted the Veteran had non-pleuritic pain in the right upper chest without any trauma. A December 1985 private medical record noted an assessment of costochondritis after the Veteran complained of some rib tenderness after some sneezing. It was noted that he remembered no injury. A March 1988 private medical record noted non-exertional chest pain occurred the previous evening in the left upper chest, that the chest pain was of uncertain etiology, and that past workups had failed to disclose any cardiac etiology. September 1991 private medical records revealed that he was seen for atypical chest wall pain. The Veteran provided a history of a sporadic very brief pleuritic-type chest pain on and off for four to five years. The examining physician indicated that the chest pain was much more consistent with chestwall-type pain and that it was very highly unlikely that it was cardiac at all. The May 1995 VA examination revealed that the Veteran complained of steady left-sided chest pain with palpitation off and on since he was in service. Past EKG and stress tests were noted as normal as were those conducted in May 1995. An echocardiogram essentially revealed normal heart chamber sizes. In July 2008, the Veteran filed his application to reopen the previously denied claim of entitlement to service connection for a disability manifested by chest pain. Since the January 1996 Board decision the following evidence has been associated with the claims file: duplicate copies of the Veteran's service treatment records; VA treatment records dated from June 1995 to March 2012 found in both the claims file and on the Veteran's eFolder; private medical records from FHP dated from December 1991 to September 2002, from September 1996 to September 2002, and from August 2001 to September 2007; duplicates of some private treatment records; a September 2006 private stress test report; a September 2007 private examination by Dr. R.A.C.; an August 2008 statement from the Veteran's primary care nurse practitioner at VA; a September 2008 private audiogram; a December 2008 statement by a physician's assistant at FHP; an August 2008 Holter monitor report from Pacific Cardiovascular Associates; VA spine examinations dated in April 2002 and October 2008; and written submissions by the Veteran and his representative. A September 2006 private medical record noted the Veteran underwent a stress test and there was no evidence found of myocardial ischemia. The ejection fraction and left ventricular wall motion were normal. A September 2007 private examination showed a normal heart rate and rhythm and no heart murmurs. In August 2008, the Veteran's primary care provider at VA stated in a letter that the Veteran suffered from chest palpitations which the Veteran attributed to his time in service. An August 2008 VA medical record noted that the Veteran's chest palpitations occurred over three to four minutes daily and their onset came with emotional stress. A November 2008 VA medical record noted that the Veteran had denied the recurrence of chest palpitations, and that he had a negative cardiac stress test in September 2006 and a negative Holter monitor in July 2008. A December 2008 VA medical record noted the Veteran had a reoccurrence of chest palpitations the previous week when he underwent a dental procedure. According to the December 2008 private statement from W.E.S., a physician's assistant at FHP, the Veteran had been treated several times over the past 10 years for palpitations with right bundle branch block noted on EKGs and a negative Holter monitor done in February 2007. A June 2009 VA medical record noted the Veteran's chest palpitations were rare and likely related to anxiety. August 2009 VA medical records noted chest pain at the left sternal border to the left chest. Another August 2009 VA medical record noted costochondritis and that the Veteran complained of left chest pain when he slept on his side. An October 2010 VA medical record noted no recent recurrence of the Veteran's chest palpitations. Positional chest pain when sleeping at night was noted. A January 2011 VA medical record showed that the Veteran was taking Clonazepam for his chest palpitations and that his EKG was unchanged. VA regulations do not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2012); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that the new evidence submitted by the Veteran does not relate to any unproven element of the previously denied claim. Moreover, the Board does not find that the new evidence provides a more complete picture of the circumstances surrounding the Veteran's service or his chest pain condition. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Thus, while the evidence received since January 1996 may be "new" in the sense that it was not previously of record, none of the evidence submitted since January 1996 is "material" for purposes of reopening the Veteran's claim for service connection for chest pain. At the time of the January 1996 decision, there was evidence that the Veteran had costochondritis after discharge from active duty, but that he had not been treated in service for any complaints related to this disorder. The RO and Board denied service connection because there was no evidence that any chest pain disorder was incurred in or aggravated by the Veteran's active military service. None of the new medical evidence includes a competent medical finding to the effect that the Veteran's currently diagnosed costochondritis disorder is related to his period of active duty. Therefore, the Board finds that the low threshold for reopening the claim has not been met in this case. In the absence of such evidence, the Veteran's application to reopen his claim must fail. The Veteran and his representative are laymen and not competent to assert on their own that this disorder was incurred or aggravated during service. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The Board notes that new evidence the Veteran has submitted to VA since 1996 that relates to the treatment of his chest wall pain or costochondritis is either redundant or cumulative of evidence submitted prior to the last prior denial, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim. It essentially does not provide any significant information that was not already known at the time of the prior final denial. The Board also notes that no treating provider or other physician in the voluminous medical record found in the claims file has related the Veteran's chest wall pain or costochondritis to his service. Nor has the Veteran submitted any medical opinion evidence that suggests such a nexus. Therefore, the Board finds that the evidence added to the claims file is not material because it does not create a reasonable possibility of substantiating the claim. Medical evidence in the file at the time of the January 1996 rating decision showed a post-discharge diagnosis of costochondritis. What the medical evidence was missing prior to the January 1996 decision, and what it continues to lack, is any sort of competent medical evidence showing that the Veteran's costochondritis disorder was incurred or aggravated during service. Therefore, the fact necessary to substantiate the claim that previously was unestablished has not been addressed. Since the deficiency that was found before remains, it follows that, even with the low threshold established in Shade, a reasonable possibility of substantiating this claim has not been raised. In sum, the evidence submitted since January 1996 either is not new because it had been associated with the claims file and considered previously, is new but is redundant of the evidence that previously was considered, or is new but not material by not relating to the reason for the previous denial of the Veteran's claim of entitlement to service connection. This claim cannot be reopened for these reasons. Gastrointestinal Disability The Veteran's claim for service connection for a gastrointestinal disability was previously considered when the RO denied service connection for a stomach problem in rating decisions dated in August 1991 and September 1991. The Veteran timely appealed the denial and the Board remanded the claim for further development in a July 1993 decision. The Veteran's claim for service connection for a gastrointestinal disability was then considered and denied by the RO in rating decisions dated in November 1994 and July 1995. The Veteran timely appealed the denial. The Board then denied the claim in January 1996 finding that there was no medical evidence of a nexus between any current disability and any in-service disease or injury. This decision is final. 38 C.F.R. § 20.1100. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final decision. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. At the time of the January 1996 Board decision that denied service connection for a gastrointestinal disability, the evidence of record consisted of service treatment records; private medical records from Western Clinic dated from February 1983 to June 1988; private medical records from Group Health dated from April 1990 to January 1992; a May 1995 VA examination; a June 1995 VA examination; and written submissions from the Veteran and his representative. Service treatment records showed treatment for one episode of possible viral gastroenteritis in November 1978. Post service, an August 1984 private upper gastrointestinal series revealed a normal swallowing function with no evidence of a hiatus hernia or any definite intrinsic esophageal lesion. There was a little coarsening of the duodenal bulb and proximal duodenum consistent with duodenitis and no other abnormality was identified. Other August 1984 private medical records revealed complaints of abdominal pain. Assessment was possible hyperacidity of the stomach with increased stress. Gastritis and peptic ulcer disease were to be ruled out. An October 1991 private medical record indicated the Veteran underwent a barium enema which showed mild diverticulosis. A January 1992 private medical record noted a good and normal sigmoidoscopy. The May 1995 VA examination noted an in-service episode of epigastric discomfort and some post-service testing that was within normal limits. An upper gastrointestinal series performed in June 1995 was normal. The June 1995 fee-basis VA examination noted that the Veteran told the examiner that he had symptoms of upper gastrointestinal pain since the 1970s when he entered military service. He said that the severe pain was not accompanied by other GI complaints. He estimated two attacks per month. He also told the examiner there was no deterioration since the 1970s and that he had alternating episodes of diarrhea and constipation. At the time of this examination, the Veteran was not taking any medications for his complaint. Diagnosis was typical irritable bowel syndrome. The VA examiner opined that "at this point in time" he thought the irritable bowel syndrome was probably not related to service. In July 2008, the Veteran filed his application to reopen the previously denied claim of entitlement to service connection for a gastrointestinal disorder. Since the January 1996 Board decision the following evidence has been associated with the claims file: duplicate copies of the Veteran's service treatment records; VA treatment records dated from June 1995 to March 2012 found in both the claims file and on the Veteran's eFolder; private medical records from FHP dated from December 1991 to September 2002, from September 1996 to September 2002, and from August 2001 to September 2007; duplicates of some private treatment records; a September 2006 private stress test report; a September 2007 private examination by Dr. R.A.C.; an August 2008 statement from the Veteran's primary care nurse practitioner at VA; a September 2008 private audiogram; a December 2008 statement by a physician's assistant at FHP; an August 2008 Holter monitor report from Pacific Cardiovascular Associates; VA spine examinations dated in April 2002 and October 2008; and written submissions by the Veteran and his representative. An April 1999 VA medical record indicated a diagnosis of irritable bowel syndrome. An October 2000 VA medical record showed abdominal pain in the left lower quadrant with an assessment of kidney stone versus irritable colon. An October 2000 pelvic CT scan showed no gastrointestinal pathology. October 2001 private medical records showed complaints of pain in the lower left quadrant, similar to pain two years before. A July 2002 VA medical record showed an assessment of irritable bowel syndrome. January 2004 private medical records showed the Veteran underwent a sigmoidoscopy which showed small diverticula and small internal hemorrhoids. A July 2008 VA medical record noted that the Veteran's gastroesophageal reflux disease (GERD) was stable on H2 blockers. In August 2008, the Veteran's primary care provider at VA stated in a letter that that the Veteran had GERD, which the Veteran attributed to his time in service. According to a November 2008 VA medical record, the Veteran's GERD was stable and he was advised to continue with Zantac and to avoid chocolate. VA medical records dated in June 2009 and August 2009 noted an assessment of GERD and that the Veteran was to continue taking Zantac. An April 2011 VA medical record noted an acute onset of epigastric pain with nausea and vomiting. Diagnosis was acute viral gastroenteritis. VA regulations do not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2012); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that the new evidence submitted by the Veteran does not relate to any unproven element of the previously denied claim. Moreover, the Board does not find that the new evidence provides a more complete picture of the circumstances surrounding the Veteran's service or his gastrointestinal condition. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Thus, while the evidence received since January 1996 may be "new" in the sense that it was not previously of record, none of the evidence submitted since January 1996 is "material" for purposes of reopening the Veteran's claim for service connection for a gastrointestinal disability. At the time of the January 1996 decision, there was evidence that the Veteran had some gastrointestinal disorders such as irritable bowel syndrome after discharge from active duty, but that he had not been treated in service for any complaints related to these disorders. The RO and Board denied service connection because there was no evidence that any gastrointestinal disorder, such as irritable bowel syndrome, was incurred in or aggravated by the Veteran's active military service. None of the new evidence includes a competent medical finding to the effect that the Veteran's currently diagnosed GERD is related to his period of active duty, and the August 2008 statement from his VA primary care provider only notes that the Veteran thought his GERD was related to service. Therefore, the Board finds that the low threshold for reopening the claim has not been met in this case. In the absence of such evidence, the Veteran's application to reopen his claim must fail. The Veteran and his representative are laymen and not competent to assert on their own that this disorder was incurred or aggravated during service. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The Board notes that new evidence the Veteran has submitted to VA since 1996 that relates to the treatment of his gastrointestinal complaint is either redundant or cumulative of evidence submitted prior to the last prior denial, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim. It essentially does not provide any significant information that was not already known or argued by the Veteran at the time of the prior final denial. The Board also notes that no treating provider or other physician in the voluminous medical record found in the claims file has related that any of the Veteran's gastrointestinal disorders are related to his service. Nor has the Veteran submitted any medical opinion evidence that suggests such a nexus. Therefore, the Board finds that the evidence added to the claims file is not material because it does not create a reasonable possibility of substantiating the claim. Medical evidence in the file at the time of the January 1996 rating decision showed a post-discharge diagnosis of irritable bowel syndrome. What the medical evidence was missing prior to the January 1996 decision, and what it continues to lack, is any sort of competent medical evidence showing that the Veteran's gastrointestinal disorders, whether irritable bowel syndrome or GERD, were incurred or aggravated during service. Therefore, the fact necessary to substantiate the claim that previously was unestablished has not been addressed. Since the deficiency that was found before remains, it follows that, even with the low threshold established in Shade, a reasonable possibility of substantiating this claim has not been raised. In sum, the evidence submitted since January 1996 either is not new because it had been associated with the claims file and considered previously, is new but is redundant of the evidence that previously was considered, or is new but not material by not relating to the reason for the previous denial of the Veteran's claim of entitlement to service connection. This claim cannot be reopened for these reasons. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including organic diseases of the nervous system, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, in order to prevail on the issue of service connection on the merits, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be considered 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 professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Hearing Loss The Veteran seeks service connection for bilateral hearing loss as a result of his military service. He contends that he was exposed to acoustic trauma, or noise, while on active duty. He contends that his hearing has been substandard and that he has trouble understanding the spoken word. The determination of whether a veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels (db) or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. The regulations set forth in 38 C.F.R. § 3.385 operate only to establish when a hearing loss can be service connected. Id. at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. The Veteran's DD Form 214 indicated that the Veteran spent nearly a year of service as an equipment records and parts specialist, that he was a materials supply man for three months, and received a sharpshooter qualification badge. Service treatment records include several audiograms measuring the Veteran's hearing acuity. Audiogram levels on his August 1977 enlistment examination and his June 1981 separation examination clearly do not show a hearing loss disability under 38 C.F.R. § 3.385. Two other audiograms, one undated and the other dated in February 1980, are in graphical form and are not numerically interpreted. In any event, the undated audiogram shows hearing loss in the left ear at 500 Hz and the February 1980 audiogram shows hearing loss in the left ear at 500 Hz and 1000 Hz. Post service, August 1985 private medical records indicate that the Veteran was trying to enlist in the Reserve and had an abnormal hearing test done with audio equipment in an open area. The abnormal hearing test apparently showed a 40 db reading for both ears at the 500 Hz level. The private physician said that a proper audiogram showed a 45 db level in the right ear at 6000 Hz and a 30 db level in the left ear at 6000 Hz. The proper audiogram itself was not reproduced and no readings were provided for the measurements at 500, 1000, 2000, 3000 and 4000 Hz. Diagnosis was a mild high frequency hearing loss, but not one that met the definition of a hearing loss disability under VA service connection regulations. The private physician also indicated that the Veteran's complaint of tinnitus was probably secondary to his high frequency hearing loss. In a January 1992 typewritten submission the Veteran claimed that he had hearing loss from loud noises while in service. He stated that he was not given hearing protection in service and now he could not hear when someone spoke to him. According to the May 1995 VA examination, the Veteran complained of a long-time hearing deficit as he was exposed to loud noise in service. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 10 LEFT 5 5 5 10 5 Speech recognition scores on the Maryland CNC Word List were 96 percent in the right ear and 94 percent in the left ear. According to a September 2007 private examination by Dr. R.A.C. the Veteran complained of some hearing problem in the right ear and bilateral tinnitus. Cranial nerve testing showed normal hearing and a physical examination showed normal ears. According to August 2008 correspondence from the Veteran's VA primary care provider the Veteran complained he was hard of hearing, which he attributed to his time in military service. In September 2008 the Veteran underwent an audiological evaluation for VA at a private facility. The audiogram is in graphical form and no numerical measurements are provided. Audiogram findings, in pure tone thresholds, in decibels, appear to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 20 20 LEFT 15 15 15 20 20 Speech recognition scores, apparently on the Maryland CNC Word List, were 94 percent in the right ear and 96 percent in the left ear. Diagnosis was normal hearing in both ears. Based on the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The regulation at 38 C.F.R. § 3.385 defines hearing loss disability for VA purposes. Hearing loss is only considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Board is constrained by the regulation found at 38 C.F.R. § 3.385, even though there is evidence of hearing loss over time and two graphical service audiograms, and a suspect audiogram taken in 1985, may meet the standards of establishing a hearing loss disability. In order for the Veteran to be granted service connection for bilateral hearing loss, there must be evidence of a service-connected disease or injury and a present disability which is attributable to such disease or injury. While there is probably evidence of exposure to acoustic trauma during service, based on the Veteran's DD Form 214, and the Board finds the Veteran's assertion of exposure to noise in service credible, the available service and post-service medical evidence does not reveal audiometric testing which demonstrates the pertinent level of bilateral hearing loss required by regulation to constitute a disability. The September 2008 audiological examination clearly shows that the Veteran does not currently meet the criteria for left ear or right ear hearing loss disability under 38 C.F.R. § 3.385. In the absence of proof of a present disability there can be no valid claim. See Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Therefore, service connection for bilateral hearing loss is not warranted at this time. However, the Board notes that should the Veteran's hearing worsen in the future and he can provide objective evidence then of hearing loss, VA will be able to reconsider this claim. The Board recognizes the Veteran's contentions that his exposure to noise while in service contributed to his hearing loss. To the extent that the Veteran contends that his claimed hearing disorder is due to his service, his opinion is outweighed by the competent medical evidence which shows there is no current hearing loss disability. Simply stated, the lack of competent medical evidence showing current bilateral hearing loss outweighs the Veteran's contentions. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Board is sympathetic to the Veteran's claims, and he is certainly competent to describe that which he experienced in service, any contentions by the Veteran that he has a current bilateral hearing loss disability that is related to what he experienced during active service is deemed not persuasive in view of the lack of evidence of hearing loss pursuant to VA regulations. In this case there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The evidence of record also does not show that the Veteran was diagnosed with a bilateral hearing loss disability within one year following his separation from service; as such, service connection for this claim on a presumptive basis also is not warranted. See 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309. For all the foregoing reasons, the claim for service connection for bilateral hearing loss must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence has not been received, the request to reopen a service connection claim for chest pain is denied. As new and material evidence has not been received, the request to reopen a service connection claim for a gastrointestinal disability is denied. Service connection for bilateral hearing loss is denied. REMAND Unfortunately, a remand is required for the two service connection claims still on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). Concerning the Veteran's claim for service connection for arthritis, the Board notes that a November 1996 private medical record showed complaints of shoulder pain; a March 2000 private medical record indicated some disorder of the right elbow; an October 2002 VA medical record showed a complaint of left elbow pain for three months; a November 2002 private medical record showed that an X-ray study of the left elbow showed a small spur at the olecranon; a July 2008 VA medical record indicated that the Veteran complained of aching joint pain and swelling in the fingers of both hands with the nurse practitioner suggesting the hand and digit pain were likely related to osteoarthritis; a November 2008 VA medical record indicated that an X-ray study showed osteoarthritis in the hand; and a November 2011 VA medical record showed mild degenerative changes in the right shoulder. An August 2008 letter from the Veteran's VA primary care provider stated that the Veteran had hand osteoarthritis which the Veteran attributed to his period of active duty. While service treatment records do not show any treatment for the hands, elbows, or shoulders, the Veteran's service representative notes in his September 2013 brief that the Veteran argues that his military service caused excessive wear and tear on his joints which contributed to his current arthritis. See Buchanan V Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting service treatment record evidence not always needed or determinative to resolve the issue of service incurrence). The Board finds these reasons and evidence are sufficient to warrant a VA examination and medical opinion for the claim of entitlement to service connection for arthritis, to include the elbows, shoulders, and hands. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Concerning the Veteran's claim for service connection for a heart disability, the Board notes that this claim is separate from whether new and material evidence had been submitted to reopen a service connection claim for chest pain (which has been denied in the discussion above). In fact, the Board found in its decision and remand of June 2011 that new and material evidence had been submitted to reopen the service connection claim for a heart disability. The Veteran's service representative argues in his September 2013 brief that the heart condition at issue here is hypertension. The Board notes that a service treatment record dated in November 1978 showed a blood pressure reading of 120/90. Post-service VA and private medical records show many measurements of high blood pressure when the Veteran's diastolic read 90 or higher. They also indicate that the Veteran takes medication for his hypertension and has sometimes been non-compliant with taking his medication. The Board finds these reasons and evidence are sufficient to warrant a VA examination and medical opinion for the claim of entitlement to service connection for a heart disability, also claimed as hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who currently treat him for any hypertension disorder, or any disorders of the elbows, shoulders, and hands and fingers. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file or the eFolder any records identified by the Veteran that are not already associated with the claims file. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After completion of the above development, schedule the Veteran to undergo appropriate VA examinations to determine the nature, extent, onset, and etiology of the claimed arthritic and heart disability, including hypertension, on appeal. The claims file and a copy of this remand shall be made available to and reviewed by each examiner. Each examiner shall note such review, and identify important information gleaned therefrom, in an appropriate examination report. All indicated studies deemed necessary shall be performed, and all findings shall be reported in detail. In discussing his or her opinion, each examiner should acknowledge the Veteran's relevant lay statements of his history of the claimed disability. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination offer opinions as to the following: a) Whether any heart disorder, including hypertension, or shoulder disorder, or elbow disorder, or hand and finger disorder is currently manifested, and, if so, a diagnosis of such disorder should be made; and (b) Whether it is at least as likely as not (a 50 percent probability or more) that any currently manifested disorder is etiologically related to the Veteran's period of active service from October 1977 to July 1981. A rationale or explanation is requested for all opinions. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, readjudicate the Veteran's remaining claims on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should thereafter be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs