Citation Nr: 1620730	
Decision Date: 05/23/16    Archive Date: 06/02/16

DOCKET NO.  12-34 182	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hiatal hernia with gastroesophageal reflux disease (GERD).

2. Entitlement to a compensable rating for service-connected bilateral hearing loss.

3. Entitlement to a compensable rating for service-connected gastritis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from November 1964 to November 1990. 
 
This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied increased ratings for the Veteran's left-ear hearing loss and gastritis, and denied service connection for tinnitus, right-ear hearing loss, and hiatal hernia with GERD on the basis that new and material evidence had not been submitted.

By a November 2012 rating decision of a Decision Review Officer (DRO), prior to the Veteran's November 2012 Substantive Appeal, the RO granted service connection for tinnitus and right-ear hearing loss and recaptioned the Veteran's increased rating claim in the resultant November 2012 Statement of the Case (SOC) as entitlement to an increased rating, a compensable rating, for bilateral hearing loss.  

During the course of the appeal, the Veteran was represented by the Florida Department of Veterans Affairs (FDVA), pursuant to an August 2008 appointment.  By a November 2012 appointment, the Veteran revoked his August 2008 appointment of FDVA in favor of The American Legion.  However, the representative listed on the November 2012 appointment is C.M., identified as a FDVA Veterans Claims Examiner, with a FDVA electronic mail address.  Another member of the FDVA, S.L., appeared with the Veteran at the time of his February 2016 Board hearing.  It remains, that while members of the FDVA may serve also as representatives with The American Legion, the most recent appointment of record is the one in favor of The American Legion and such is reflected on the title page herein.

In February 2016, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO.  A transcript of the hearing has been associated with the claims file. 

The issues of entitlement to compensable ratings for service-connected bilateral hearing loss and gastritis, addressed in the REMAND portion of the decision below, are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not appeal a September 1993 RO decision that denied service connection for hiatal hernia with gastroesophageal gastric reflux. 
 
2. Evidence received since the September 1993 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim, now captioned as entitlement to service connection for a hiatal hernia with GERD.

3.  A hiatal hernia with GERD had its onset during service.


CONCLUSIONS OF LAW

1. The September 1993 RO decision that denied service connection for hiatal hernia with gastroesophageal gastric reflux is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2015). 
 
2. The evidence received subsequent to the September 1993 RO decision is new and material; the claim of entitlement to service connection for hiatal hernia with GERD is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  The criteria for service connection for a hiatal hernia with GERD are satisfied.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Hiatal Hernia with GERD 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

In general, VA rating decisions that are not timely appealed are final. 38 U.S.C.A.    § 7105; 38 C.F.R. § 20.302.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C.A. § 5108.  New evidence is defined as 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). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (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).  Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.   

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). 

In this case, the Veteran's initial claim of entitlement to service connection for hiatal hernia with gastroesophageal gastric reflux was denied in a September 1993 RO decision.  Within one year of the RO's rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52.  As such, the September 1993 RO decision became final.

The relevant evidence of record at the time of the September 1993 RO decision included the Veteran's claim and related statements, his service treatment records, and report of a March 1993 VA examination.  His claim was denied as there was no evidence of in-service hiatal hernia. 

Evidence added to the record since that time includes the Veteran's claim and related statements, as well as additional VA and private treatment records.  His related statements include his testimony from his February 2016 Board hearing.  At that time, he described in-service symptoms and treatment for a condition he asserts to be hiatal hernia, misdiagnosed as gastritis.  His statements regarding possible in-service hiatal hernia, or symptoms thereof, are new and they are also material, as with VA's assistance, in the form of additional development seeking an etiological opinion, the evidence could reasonably result in substantiation of the claims.  Shade, 24 Vet. App. 110, 118.

As the Board has determined that new and material evidence has been received as to the Veteran's previously denied claim, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. As the claim is hereby granted, there is no prejudice to the Veteran.

The Veteran's service treatment records dated in August 1967 indicate that he complained of abdominal pain and was diagnosed with intestinal colic, and in September 1969, he complained of a swollen right inguinal area.  In July 1970, he complained of abdominal pain, and in February 1974, he was treated for viral syndrome and gastritis.  In his October 1976 Report of Medical History, the Veteran reported frequent indigestion, and the examiner noted that the Veteran used over-the-counter medication for chest discomfort and experienced frequent indigestion, each without complication or sequelae.  A March 1977 study was negative for hernia or reflux.  In his October 1981 Report of Medical History, he reported frequent indigestion.  In February 1981, he complained of abdominal pain, and in June 1983, he complained of nausea and weakness and was diagnosed with viral syndrome.  He sought emergency treatment for substernal chest pain and mild associated nausea in June 1984, and was diagnosed with chest pain, suspect gastrointestinal in nature and treated with over-the-counter medication.  He sought emergency treatment for gastritis in February 1986.  In August 1986, he complained of abdominal pain and the treatment providers sought to rule out peptic ulcer disease.  In August 1986, the Veteran complained of bilateral rib cage pain for two weeks, with a burning sensation in the stomach, and was diagnosed with acute gastritis versus peptic ulcer disease.  At the time of his separation from service, on his August 1990 Report of Medical History, the Veteran reported frequent indigestion and the examiner noted the same from 1970 to the present, cause unknown, treated with over-the-counter medication, not clinically significant.  An August 27, 1990 treatment record showed that the Veteran was diagnosed as having a history of dyspepsia, probable gastroesophagitis or peptic ulcer disease (PUD).

After service, on VA examination in February 1991, no hernias were found and the Veteran was diagnosed with possible gastritis, recurring in type, after complaining of some burning and nausea for which to took antacid medication.  However, on VA examination in March 1993, the Veteran reported a long history of abdominal distress with associated left chest pain, and was diagnosed with hiatal hernia with GERD.  More recent medical evidence, including a March 2009 VA examination, shows that the Veteran is diagnosed as having GERD with a hiatal hernia.

Given the Veteran's ongoing symptoms and treatment during service to include the notation of a history of dyspepsia and probable gastroesophagitis in August 1990; the diagnosis of hiatal hernia with GERD in March 1993, less than three years following his separation from service; and the Veteran's testimony in February 2016 describing his in-service and continuing symptoms, the Board resolves reasonable doubt in his favor and finds that service connection for a hiatal hernia with GERD is warranted.  See 38 C.F.R. §§ 3.102, 3.303(d). 


ORDER

New and material evidence having been received, the claim of entitlement to service connection for hiatal hernia with GERD, is reopened.

Entitlement to service connection for hiatal hernia with GERD is granted.



REMAND

As to the Veteran's claims of entitlement to compensable ratings for service-connected bilateral hearing loss and gastritis, he asserted, during his February 2016 Board hearing, that both conditions have become worse since his last VA examinations.  Review of the record indicates that his last VA examinations of these conditions were in October 2012, more than three years ago; and on remand, the AOJ should afford the Veteran VA examinations of his bilateral hearing loss and gastritis to determine the current severity of the same. 

The Veteran's most recent VA treatment records are dated in August 2015, and on remand, the AOJ should obtain and associate with the claims file his updated VA treatment records.  His most recent private treatment records reflecting treatment from Dr. Schmidt are dated in September 2011.  On remand, the AOJ should provide the Veteran an opportunity to supplement the record with any relevant private treatment records.

Finally, the Veteran's gastritis has been assigned a noncompensable disability rating under Diagnostic Code 7307.  Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114 (2015).  As the Board's award of service connection for a hiatal hernia with GERD might affect the rating assigned for the Veteran's gastrointestinal disability, that decision must be implemented.

Accordingly, the case is REMANDED for the following action:

1. Implement the Board's decision awarding service connection for a hiatal hernia with GERD.

2.  Obtain and associate with the Veteran's claims file his VA treatment records maintained by the Eglin Air Force Base VA Clinic, including the Eglin Community Based Outpatient Clinic (CBOC), dated from August 2015 to the present.  Any and all responses, including negative responses, must be properly documented in the claims file.  If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records.

3. Send the Veteran VA Forms 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and request that he complete such in order to obtain any outstanding relevant private treatment records.  Inform the Veteran that his most recent private treatment records reflecting treatment from Dr. Schmidt are dated in September 2011.  Advise the Veteran that he may submit such records if he so chooses.  Any and all responses, including negative responses, must be properly documented in the claims file.  If a negative response is received from any facility, the Veteran must be duly notified and provided an opportunity to submit such records.

4.  Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity, including functional effects, of his service-connected bilateral hearing loss.  The examiner should note all relevant pathology and conduct all appropriate tests.

5.  Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity, including functional effects, of his service-connected gastritis, hiatal hernia, and GERD.  The examiner should note all relevant pathology and conduct all appropriate tests.

6. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims.  If any action remains adverse to the Veteran, provide the Veteran with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board.

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 2015).



______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs