Citation Nr: 1625629 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 09-07 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bladder cancer. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an esophageal disorder, to include gastroesophageal reflux disease (GERD) and Barrett's esophagitis. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for colon polyps. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cervical spine disorder. 7. Entitlement to service connection for a thyroid disorder, status post right hemithyroidectomy. 8. Entitlement to service connection for osteopenia. 9. Entitlement to service connection for memory loss. 10. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety. 11. Entitlement to service connection for a pulmonary/respiratory disorder, to include chronic obstructive pulmonary disease (COPD), emphysema, interstitial lung disease and linear lung disease. 12. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from February 1968 to February 1976, including a year of service on the ground in Vietnam. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the appeal in June 2012 for obtaining additional records, including U.S. Social Security Administration (SSA) records, and providing proper notice for the criteria for substantiating the claim. The Board remanded the claim again in March 2015 to verify the Veteran's correct mailing address, as a number of documents had been returned as undeliverable. The case is now returned for appellate review. While the March 2015 Board remand noted that the issue of whether new and material evidence had been received to reopen a service connection claim for a cardiac disorder was on appeal, the Board, in its prior June 2012 decision, dismissed this issue as moot. The Veteran was granted service connection for ischemic heart disease, and there remains no case or controversy with respect to that issue. Thus, the service connection claim for cardiac disorder is no longer on appeal. The Board noted in March 2015 that the issue of entitlement to an increased rating for residuals of hemorrhoids had been raised by a statement in a 2009 substantive appeal, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Appeals Management Center created a memo in September 2015 noting this inferred issue but there is still no record that the AOJ has adjudicated the claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of service connection for left ear hearing loss, bladder cancer, an esophageal disorder, to include gastroesophageal reflux disease (GERD) and Barrett's esophagitis, colon polyps, hypertension, a cervical spine disorder, a thyroid disorder, status post right hemithyroidectomy, osteopenia, memory loss, a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety, a pulmonary/respiratory disorder, to include chronic obstructive pulmonary disease (COPD), emphysema, interstitial lung disease and linear lung disease, and obstructive sleep apnea, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's service connection claim for arthritis of the neck, hearing loss, residuals of bladder cancer, residuals of colon polyps, GERD and probably Barrett's esophagus (claimed as pre-cancerous esophagus), and hypertension was denied in an August 2006 rating decision. The Veteran did not appeal this rating decision to the Board; nor has he asserted clear and unmistakable error in this decision. 2. The evidence received since the August 2006 RO decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim. 3. It is at least as likely as not that the Veteran's right ear hearing loss had its onset during military service. CONCLUSIONS OF LAW 1. The August 2006 rating decision denying service connection for arthritis of the neck, hearing loss, residuals of bladder cancer, residuals of colon polyps, GERD and probably Barrett's esophagus (claimed as pre-cancerous esophagus), and hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2015). 2. Since the August 2006 RO rating decisions, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for arthritis of the neck, hearing loss, residuals of bladder cancer, residuals of colon polyps, GERD and probably Barrett's esophagus (claimed as pre-cancerous esophagus), and hypertension; and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The Board reopens the service connection claim for arthritis of the neck, hearing loss, residuals of bladder cancer, residuals of colon polyps, GERD and probably Barrett's esophagus (claimed as pre-cancerous esophagus), and hypertension based on the receipt of new and material evidence, and also grants service connection for right ear hearing loss, which, other than the matters addressed in the remand section below, represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. II. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2015). 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 sustaining the claim. 38 C.F.R. § 3.156(a) (2015). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). A. Bilateral Hearing Loss The Veteran originally filed a service connection claim for bilateral hearing loss in August 2004 claiming that this disability started during his military service. The evidence submitted at that time included service treatment records, which noted a diagnosis of right ear hearing loss on a separation examination from the Veteran's first period of service in December 1971. The Veteran also was treated for bilateral otitis externa in September 1968. During his second period of service, he was treated for impacted cerumen in both ears in March 1974. After service, the Veteran underwent a VA examination in November 2005 noting that the Veteran had a diagnosis of moderately severe, bilateral sensorineural hearing loss. The audiometry report notes that the right ear had 70 decibels at 4,000 Hz. The examiner determined that the Veteran's right ear hearing loss was not related to military service, but mistakenly noted that the December 1971 audiology examination was at entry into his service, rather than separation from the first period of service. Thus, the examiner essentially determined that there was no aggravation of the hearing loss in the right ear noted in the December 1971 examination, as there was no significant change in the Veteran's hearing after this. After his claim was denied in a January 2006 rating decision on the basis that the condition was neither incurred in, nor was caused by service, he submitted another statement in February 2006 that he had experienced bilateral hearing loss since service, had exposure to acoustic trauma in service, and had no significant post-service exposure to acoustic trauma. The RO confirmed the denial of service connection for hearing loss in an August 2006 rating decision. The Veteran did not appeal the August 2006 decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In August 2008, the Veteran submitted a petition to reopen service connection for a bilateral hearing loss. The Veteran underwent another VA audiology examination in October 2008, which continued to show that the Veteran had hearing loss; but no etiology opinion was provided. An August 2008 and May 2011 private medical opinion also was submitted noting that the Veteran had a constellation of medical problems that cumulatively were rare in an individual's lifetime. While the physician did not specifically note hearing loss as one of the medical conditions, he went on to note that in his estimate it was not inconceivable that exposure to toxic substances in the military had contributed as a causative aggravating factor to his medical conditions. The Board finds that this evidence is both new and material. Specifically, the newly received evidence suggests a possibility that the Veteran's medical conditions that he presently suffers from, which would include bilateral hearing loss, might be due to military service. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2015). Accordingly, the Veteran's service connection claim for bilateral hearing loss is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). B. Bladder Cancer The Veteran originally filed a service connection claim for bladder cancer in August 2004 asserting that it started in September 2002 with treatment beginning in 2003, and was related to his service time. His claim for bladder cancer was denied in an August 2005 rating decision on the basis that the condition was not associated with exposure to Agent Orange. The evidence submitted at that time included the service treatment records, which were silent for any mention of bladder cancer. A January 2003 private surgery report shows a bladder tumor was removed. The pathology report shows papillary urothelial (transitional cell) carcinoma, low-grade. A March 2004 private hospital record shows a cytologic diagnosis of atypical urothelial cells. An August 2004 Agent Orange registry examination showed an impression of urinary bladder cancer. After the August 2005 rating decision, additional treatment records were submitted showing follow-up treatment for the bladder cancer. The denial of service connection for bladder cancer residuals was denied again in August 2006. The Veteran did not appeal the August 2006 decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In August 2008, the Veteran submitted a petition to reopen the claim for service connection for bladder cancer. In August 2008 and May 2011, a private medical opinion was provided that the Veteran had a constellation of health problems, including bladder cancer that was rare for one individual's lifetime. Thus, the opinion noted that it was not inconceivable that exposure to toxic substances during military service had contributed as a causative or aggravating factor to his medical conditions. The Board finds that this evidence is both new and material. Specifically, the newly received evidence shows that the Veteran's bladder cancer might be related to his exposure to herbicides in Vietnam. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2015). Accordingly, the Veteran's service connection claim for bladder cancer is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). C. Esophageal Disorder The Veteran's service connection claim for gastroesophageal reflux disease and Barrett's esophagus (claimed as pre-cancerous esophagus) was originally denied in an August 2005 rating decision on the basis that the condition neither occurred in nor was caused by service. The evidence submitted at that time was the service treatment records, which were silent for any mention of an esophageal disorder. Post-service evidence included an April 1997 private hospital record noting complaints of mild lower abdominal cramping with a diagnosis of mild diverticulosis. An August 2004 Gulf War Registry examination report on which the Veteran stated that he was diagnosed with gastroesophageal reflux disease in 1980 and now had a pre-cancerous esophagus due to Agent Orange exposure, diagnosed in 2004, also was submitted. Private hospital records dated in 2004 showed a pathology report diagnosis of possible Barrett's esophagus, negative for dysplasia or malignancy. A May 2005 private pathology report also shows gastroesophageal mucosa with mild chronic inflammation, with no intestinal metaplasia identified. The RO determined in the August 2005 rating decision that the Veteran's esophagus was not shown to be pre-cancerous, and that his diagnosis of gastroesophageal reflux disease, possible esophageal spasm, and probable Barrett's esophagus was not incurred in service, either on a direct basis or presumptively related to Agent Orange exposure. Additional evidence was added to the record, including a February 2006 private medical statement that the Veteran's biopsy from his stomach showed intestinal metaplasia or Barrett's esophagus that was not cancer, but was considered a possible premalignant change in the esophagus that occurred because of chronic reflux of acid. In an August 2006 rating decision, the RO continued the denial of service connection for the esophagus disorder, noting that the evidence continued to show that the condition was not incurred in or aggravated by military service. The Veteran did not appeal this decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In August 2008 the Veteran submitted a petition to reopen service connection for gastroesophageal reflux disease. Additional evidence was submitted including an August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. While any esophageal disorder was not directly referenced, the Board finds it reasonable to deduce that it would have been considered in a broad statement concerning the Veteran's health problems. The Board finds that this evidence is both new and material. Specifically, the newly received evidence suggests that the Veteran's gastroesophageal disorder might be related to his exposure to herbicides in Vietnam. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2014). Accordingly, the Veteran's service connection claim for an esophageal disorder is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). D. Colon Polyps The Veteran's service connection claim for colon polyps was originally denied in an August 2005 rating decision on the basis that the condition neither occurred in nor was caused by service. The evidence submitted at that time was the service treatment records, which were silent for any mention of polyps. Post-service evidence included an April 1997 private hospital record noting polyps were found during a colonoscopy. The Veteran also complained of colon polyps on an August 2004 Gulf War Registry examination, and noted that they were initially diagnosed in 1990. The RO determined in the August 2005 rating decision that the Veteran's polyps were not incurred in service, either on a direct basis or presumptively related to Agent Orange exposure. Additional evidence was added to the record, but did not directly address polyps being related to military service. In an August 2006 rating decision, the RO continued the denial of service connection for polyps. The Veteran did not appeal this decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In August 2008 the Veteran submitted a petition to reopen service connection for polyps. Additional evidence was submitted including an August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. While polyps were not directly referenced, the Board finds it reasonable to deduce that it would have been considered in a broad statement concerning the Veteran's health problems. The Board finds that this evidence is both new and material. Specifically, the newly received evidence suggests that the Veteran's polyps might be related to his exposure to herbicides in Vietnam. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2014). Accordingly, the Veteran's service connection claim for polyps is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). E. Hypertension The Veteran's service connection claim for hypertension was originally denied in an August 2005 rating decision on the basis that the condition neither occurred in nor was caused by service. The evidence submitted at that time was the service treatment records, which were silent for any mention of hypertension. Post-service evidence included an April 1997 private hospital record noting that the Veteran had hypertension. A July 2000 private treatment record also notes that the Veteran had hypertension. Private hospital records in June 2004 note that the Veteran's blood pressure was elevated and that he had complaints of headache. A separate clinical record notes that the Veteran had been hypertensive for 15 years and that his hypertension was extremely labile in spite of medication. After undergoing an exercise treadmill test, it was found that he had exaggerated systolic and diastolic blood pressure response. The Veteran also noted on an August 2004 Gulf War Registry examination that he had been on medication for hypertension for 10 years (i.e., since 1994). Private hospital records dated in 2005 show continued findings of hypertension. The RO determined in the August 2005 rating decision that the Veteran's hypertension was not incurred in service, either on a direct basis or presumptively related to Agent Orange exposure. Additional evidence was added to the record dated in 2006 noting continued findings of hypertension. In an August 2006 rating decision, the RO continued the denial of service connection for hypertension. The Veteran did not appeal this decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In August 2008 the Veteran submitted a petition to reopen service connection for hypertension. Additional evidence was submitted including private treatment records dated in 1996 noting hypertension, as well as VA treatment records dated through 2008, and private treatment records dated through 2013 showing continued treatment for hypertension. An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. While hypertension was not directly referenced, the Board finds it reasonable to deduce that it would have been considered in a broad statement concerning the Veteran's health problems. In addition, the Veteran has been granted service connection for ischemic heart disease and a possible theory of entitlement to service connection on a secondary basis has arisen as a result. The Board finds that this evidence is both new and material. Specifically, the newly received evidence suggests that the Veteran's hypertension might be related to his exposure to herbicides in Vietnam and/ or caused or aggravated by his now service-connected ischemic heart disease. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2015). Accordingly, the Veteran's service connection claim for hypertension is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). F. Cervical Spine The Veteran's service connection claim for a cervical spine disorder was originally denied in an August 2006 rating decision on the basis that the condition neither occurred in nor was caused by service. The evidence submitted at that time was the service treatment records, which were silent for any mention of a cervical spine disorder. Post-service evidence included a November 1999 private treatment record noting complaints of neck pain for a couple of weeks with an assessment of neck strain. An MRI report in December 1999 was negative for any significant disk material or acute cervical pathology. Private hospital records dated in 2005 show MRI and radiograph findings of multi-level degenerative disc disease, multi-level osteoarthritis, and chronic fracture of the spinous process of C7. The RO determined in the August 2006 rating decision that the Veteran's cervical spine disability could not be established as secondary to a back disability, as service connection for a back disability was not granted. The RO also determined that there was no evidence showing arthritis of the neck was incurred or aggravated by service, or manifested to a compensable degree within one year of separation from service. The Veteran did not appeal this decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In August 2008 the Veteran submitted a petition to reopen service connection for a cervical spine disability. In a September 2008 statement the Veteran indicated that he injured his neck (and back) while stationed in South Dakota, but did not seek VA treatment because he did not know he could until he got a letter about his Agent Orange exposure. He noted that he had had neck problems since his military service. Additional evidence was submitted showing continued treatment for the cervical spine including surgery in 2007. An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems, including degenerative disc disease, are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. The Board finds that this evidence is both new and material. Specifically, the newly received evidence suggests that the Veteran's cervical spine disability might be related to his exposure to herbicides in Vietnam. In addition, the Veteran has submitted competent lay evidence of injury to his cervical spine in service and chronic pain in his neck since his military service. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2014). Accordingly, the Veteran's service connection claim for a cervical spine disability is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). III. Service Connection for Right Ear Hearing Loss Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system (which includes sensorineural hearing loss) shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year after service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of § 3.307 are also satisfied. See 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Veteran originally filed a service connection claim for bilateral hearing loss in August 2004 claiming that this disability started during his military service. The service treatment records show that the Veteran had a diagnosis of right ear hearing loss during a December 1971 separation examination (from his first period of service). For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The December 1971 audiology examination report notes 40 decibels at 4,000 Hz in the right ear, which meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. Hearing Conservation data in November 1969 in the service treatment records note that the Veteran had noise exposure from jets and working in the hanger shop. After service, the Veteran underwent a VA examination in November 2005 noting that the Veteran had a diagnosis of moderately severe, bilateral sensorineural hearing loss. The audiometry report notes that the right ear had 70 decibels at 4,000 Hz. The examiner determined that the Veteran's right ear hearing loss was not related to military service, but mistakenly noted that the December 1971 audio examination was at entry into his service, rather than separation from the first period of service. Thus, the examiner essentially determined that there was no aggravation of the hearing loss in the right ear noted in the December 1971 examination, as there was no significant change in the Veteran's hearing after this. After his claim was denied in a January 2006 rating decision on the basis that the condition was neither incurred in, nor was caused by service, he submitted another statement in February 2006 that he had experienced bilateral hearing loss since service, had exposure to acoustic trauma in service, and had no significant post-service exposure to acoustic trauma. The Veteran underwent another VA audiology examination in October 2008, which continued to show that the Veteran had hearing loss; but no etiology opinion was provided. Also, a May 2011 private medical opinion was submitted suggesting that the Veteran's myriad of health problems was related to his Agent Orange exposure, although hearing loss was not specifically named. The November 2005 VA medical opinion is inadequate for VA purposes, as it is based on an inaccurate assessment of the evidence. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). In addition, the evidence reflects that the Veteran has stated that he had hearing loss which began in service and continued over the years. He is competent to say he has had hearing loss for years. The Board finds that his statements are both competent and credible. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). However, organic diseases of the nervous system, which includes sensorineural hearing loss, is such a chronic condition under 38 C.F.R. § 3.309(a). Moreover, the Veteran has reported that he experienced hearing loss in service, as confirmed by the findings in the treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (service treatment records, etc.)). The Veteran's military occupational specialty in the U.S. Air Force was Air Cargo Specialist; thus, it is presumed that he was exposed to acoustic trauma. The other two medical opinions in October 2008 and May 2011 are not that probative, as well, as the October 2008 examination does not include an etiology opinion. The May 2011 opinion suggests a relationship between the Veteran's hearing loss and military service, but it is essentially speculative in nature. Even though there is no probative opinion of record addressing the etiology of the Veteran's hearing loss disability, the Board considers it significant that the Veteran was initially diagnosed with right ear hearing loss in service. He also had recurrent complaints of hearing loss since service. Moreover, he has since undergone clinical testing that establishes a current diagnosis of right ear hearing loss in support of his service connection claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that, in a claim for service connection, the requirement of a 'current disability' is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). Where, the record contains both in-service and post-service diagnoses of a chronic disorder (sensorineural hearing loss), no medical opinion as to etiology is necessary to grant service connection. See Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008). Thus, to the extent that the Veteran's right ear hearing loss in service may arguably be considered "chronic" in service, even without a probative medical opinion relating the Veteran's currently diagnosed right ear hearing loss to his military service, the Board finds that the evidence weighs in favor of his claim. In addition, to the extent that "chronicity" arguably may not have been established in service, the Board considers the Veteran's assertions of a continuity of hearing loss since service to be credible in the absence of any probative evidence expressly negating those assertions. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The medical evidence establishes that the Veteran was exposed to acoustic trauma in service as an Air Cargo Specialist in the Air Force, was diagnosed with right ear hearing loss in service, has complained of hearing loss since service, and is currently diagnosed with right ear hearing loss. Moreover, the Board observes that the Veteran has attested to his long-term hearing loss, which, as a lay person, he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (2007) (lay evidence can be competent to establish diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms supports a later diagnosis by a medical professional). When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because there is a medical finding of right ear hearing loss in service and thereafter, and credible supporting evidence of right ear hearing loss since service, the Board concludes that the evidence supports the grant of service connection for right ear hearing loss. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for right ear hearing loss is granted. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, and to this extent only, the appeal is granted. Entitlement to service connection for right ear hearing loss is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for bladder cancer, and to this extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for an esophageal disorder, to include GERD and Barrett's esophagitis, and to this extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for colon polyps, and to this extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, and to this extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for cervical spine disorder, and to this extent only, the appeal is granted. REMAND The Veteran seeks service connection for left ear hearing loss, bladder cancer, esophageal disorder, colon polyps, hypertension, a cervical spine disorder, a thyroid disorder, osteopenia, memory loss, a psychiatric disorder, to include PTSD, depression, and anxiety, a pulmonary/ respiratory disorder, to include chronic obstructive pulmonary disease, emphysema, interstitial lung disease, and linear lung disease and obstructive sleep apnea. Medical examinations with etiology opinions need to be provided for all of the claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain relevant treatment records pertaining to the Veteran for left ear hearing loss, bladder cancer, esophageal disorder, colon polyps, hypertension, a cervical spine disorder, a thyroid disorder, osteopenia, memory loss, a psychiatric disorder, to include PTSD, depression, and anxiety, a pulmonary/ respiratory disorder, to include chronic obstructive pulmonary disease, emphysema, interstitial lung disease, and linear lung disease and obstructive sleep apnea from the VAMC in Salt Lake City dated from March 2009 to present. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning this claim. 2. Ask the Veteran to identify any additional treatment he has received for left ear hearing loss, bladder cancer, esophageal disorder, colon polyps, hypertension, a cervical spine disorder, a thyroid disorder, osteopenia, memory loss, a psychiatric disorder, to include PTSD, depression, and anxiety, a pulmonary/ respiratory disorder, to include chronic obstructive pulmonary disease, emphysema, interstitial lung disease, and linear lung disease and obstructive sleep apnea. Make reasonable efforts to obtain any records identified and notify the Veteran of any negative responses and what further steps VA will make concerning his claim. 3. Thereafter, schedule the Veteran for VA examinations with a physician with the relevant background, if possible, to ascertain the etiology of the disabilities identified below. The VBMS file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The following is provided as guidance for all requested examinations and opinions: A. Please accept any lay statements from the Veteran regarding symptoms in service and after service as competent. B. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. C. In making these assessments please consider that the Veteran served in the Republic of Vietnam from June 1969 to June 1970, and is presumed to have been exposed to herbicide agents, to include Agent Orange. In providing the above requested opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a disorder due to herbicide exposure that is not on the list of diseases presumptively associated with exposure to herbicide agents. D. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Then the examiner(s) should provide opinion(s) as to the following: (i). Left ear hearing loss. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current left ear hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to acoustic trauma as an Air Cargo Specialist in the Air Force, and/or exposure to herbicides in service, or manifested within the first year after separation from military service. (b). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current left ear hearing loss was caused, or alternatively, aggravated beyond the normal progression of the disorder, by the Veteran's service-connected right ear hearing loss. In making these assessments please consider the following evidence: --The service treatment records showing hearing conservation data in November 1969 noting that the Veteran had noise exposure from jets and working in the hanger shop. --The Veteran's statements that he has experienced hearing loss since his military service. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (ii). Bladder cancer. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bladder cancer loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in service, or manifested within the first year after separation from military service. In making these assessments please consider the following evidence: --A January 2003 private surgery report shows a bladder tumor was removed. The pathology report shows papillary urothelial (transitional cell) carcinoma, low-grade. A March 2004 private hospital record shows a cytologic diagnosis of atypical urothelial cells. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems, including bladder cancer, are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (iii). Esophageal disorder. (a). Whether it is at least as likely as not (50 percent or greater probability) that any current esophageal disorder to include GERD and Barrett's esophagitis loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in service. In making these assessments please consider the following evidence: --An April 1997 private hospital record noting complaints of mild lower abdominal cramping with a diagnosis of mild diverticulosis. An August 2004 Gulf War Registry examination report on which the Veteran stated that he was diagnosed with gastroesophageal reflux disease in 1980 and now has a pre-cancerous esophagus due to Agent Orange exposure, diagnosed in 2004. --Private hospital records dated in 2004 showing a pathology report diagnosis of possible Barrett's esophagus, negative for dysplasia or malignancy. A May 2005 private pathology report also shows gastroesophageal mucosa with mild chronic inflammation, with no intestinal metaplasia identified. --A February 2006 private medical statement that the Veteran's biopsy from his stomach showed intestinal metaplasia or Barrett's esophagus that was not cancer, but was considered a possible premalignant change in the esophagus that occurred because of chronic reflux of acid. --An August 2008 surgical pathology report showing fragments of both squamous and glandular mucosa; the squamous showed minimal basal cell hyperplasia and rare-intraepithelial lymphocytes; the glandular tissue showed mild irregularity with occasional dilated and branching glands; there was underlying mild mixed chronic stromal inflammation with slight reactive epithelial changes, but no intestinal metaplasia; no dysplasia seen. --April 2013 esophagogastroduodenoscopy with biopsy of the GE junction and colonoscopy to the cecum with polypectomy x2 showing squamoglandular and gastric-type mucosa with chronic inflammation and reactive change, no dysplasia identified; and benign squamous epithelium with no specific diagnosis. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (iv). Colon polyps. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current colon polyps had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in service. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current colon polyps was caused, or alternatively, aggravated beyond the normal progression of the disorder, by the Veteran's service-connected hemorrhoids. In making these assessments please consider the following evidence: --An April 1997 private hospital record noting polyps were found during a colonoscopy. The Veteran also complained of colon polyps on an August 2004 Gulf War Registry examination, and noted that they were initially diagnosed in 1990. --Colonoscopy in October 2008 showing two hyperplastic polyps and three portions of colonic mucosa showing surface hyperplasia. --April 2013 esophagogastroduodenoscopy with biopsy of the GE junction and colonoscopy to the cecum with polypectomy x2 showing suspected hyperplastic polyps of the left colon, and possible adenomatous polyp of the transverse colon. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (v). Hypertension. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current hypertension had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in service, or manifested within the first year of separation from service. (b). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current hypertension was caused, or alternatively, aggravated beyond the normal progression of the disorder, by the Veteran's service-connected ischemic heart disease. In making these assessments please consider the following evidence: --A March 1996 private treatment record noting that the Veteran had hypertension. A July 2000 private treatment record also notes that the Veteran had hypertension. --Private hospital records from 2002 to 2005 noting that the Veteran's blood pressure was elevated and that he had complaints of headache. A separate clinical record in June 2004 notes that the Veteran had been hypertensive for 15 years and that his hypertension was extremely labile in spite of medication. After undergoing an exercise treadmill test, it was found that he had exaggerated systolic and diastolic blood pressure response. --On August 2004 Gulf War Registry examination the Veteran reported that he had been on medication for hypertension for 10 years (i.e., since 1994). He noted on a May 2011 statement that he had had high blood pressure since his late 20s early 30s. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (vi). Cervical spine disability and osteopenia. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current cervical spine disability and/ or any osteopenia had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in service, or first manifested within one year of separation from service. In making these assessments please consider the following evidence: --A November 1999 private treatment record noting complaints of neck pain for a couple of weeks with an assessment of neck strain. An MRI report in December 1999 was negative for any significant disk material or acute cervical pathology. --Private hospital records dated in 2005 show MRI and radiograph findings of multi-level degenerative disc disease, multi-level osteoarthritis, and chronic fracture of the spinous process of C7. --In a September 2008 statement the Veteran indicated that he injured his neck (and back) while stationed in South Dakota, but did not seek VA treatment because he did not know he could until he got a letter about his Agent Orange exposure. He noted that he had had neck and back problems since his military service. --A September 2008 private bone density report showing osteopenia in the lumbar area. --Additional evidence showing continued treatment for the cervical spine including anterior cervical discectomy with fusion in April 2007; and anterior cervical discectomy, arthrodesis, C6-C7, anterior cervical instrumentation C5-C7, and placement of structural tricorticate allograft C6-7 in August 2007. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems, including degenerative disc disease and osteopenia requiring surgical intervention, are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (vii). Thyroid disorder. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current thyroid disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in service. In making these assessments please consider the following evidence: --Normal TSH laboratory testing in September 2004 and June 2007. --Right hemithyroidectomy to remove mass on right thyroid with benign parathyroid tissue, and nodular adenomatous goiter, pathology results in August 2007. --A September 2008 bone density examination and October 2014 private treatment records showing acquired hypothyroidism. --A December 2012 private hospital record showing a finding of soft tissue extension from left lobe of the thyroid inferiorly into the prevascular space compatible with large thyroid nodule. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems, including goiter with follicular thyroid nodule, are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (viii). Acquired psychiatric disorder to include PTSD, depression, and anxiety, and memory loss. (a). As to each diagnosed acquired psychiatric disorder, whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder, to include PTSD, depression, anxiety disorder and/ or memory loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including service in Vietnam and/ or exposure to herbicides in service, or a psychosis was manifested within the first year after separation from military service. In making these assessments please consider the following evidence: --Service treatment records showing complaints of nervousness and anxiety in April 1968. --A July 2000 private treatment record noting that the examining clinician was considering treating the Veteran for depression; a May 2005 private emergency room record noting memory loss with unremarkable CT scan of the head; an April 2006 private treatment record noting memory loss, onset one month prior, with negative psychiatric examination; and a September 2007 VA treatment record noting a positive depression screen. --A September 2008 stressor statement submitted by the Veteran's wife noting that the Veteran did not want to talk about anything that happened in Vietnam but had told her that he knew people in another base that had been overrun and killed, but did not remember names or dates; that his base was constantly being threatened to be overrun; that he had friends that had nervous breakdowns; that he did not trust children because of the children he encountered in Vietnam; that he startles easily if someone comes up behind him and surprises him; that he has violent outbursts; that he does not want to go out and stays very seclusive; and that he does not trust strangers. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (ix). Pulmonary/respiratory disorder, to include chronic obstructive pulmonary disease (COPD), emphysema, interstitial lung disease and linear lung disease. (a). As to each diagnosed pulmonary/respiratory disorder, whether it is at least as likely as not (50 percent or greater probability) that any current pulmonary/ respiratory disorder, to include COPD, emphysema, interstitial lung disease, linear lung disease had its clinical onset during active service or is related to any in-service disease, event, or injury, including service in Vietnam and/ or exposure to herbicides in service. In making these assessments please consider the following evidence: --Service treatment records showing treatment for left lower lobe pneumonia and gram stain of sputum showing positive Diplococci in September 1968; and complaints of chronic cough, and shortness of breath and pain in chest after running on a January 1968 report of medical history, slight cough in December 1968 and April 1970 with upper respiratory infection. --The Veteran's history of tobacco use for 30 plus-years, quitting in approximately 2003. --Private treatment records dated from 2002 to 2005 showing complaints of chronic cough and chest pain with normal chest x-rays; with a finding of resolving bronchitis in November 2004. --Private treatment record dated in January 2006 noting that the Veteran had pneumonia in December 2005 and had not felt 100 percent since then, with complaints of shortness of breath and fatigue; with an assessment of bronchitis in February 2006. --An August 2006 private treatment record showing bilateral basilar crackles in the chest with an impression of palpable chronic obstructive pulmonary disease exacerbation with chronic cough. --An April 2007 private treatment chest x-ray record showing minimal density to the lung bases suggestive of atelectasis. --A June 2007 private treatment record noting an assessment of chronic obstructive pulmonary disease; it was noted that parenchymal pulmonary disease, nor pulmonary emboli, or COPD were related to chest wall pain, but rather a neuromuscular weakness was suspected. --Treatment in December 2007 for acute exacerbation of COPD (emphysematous) and chronic bronchitis. --Private hospital records dated from 2011 to 2013 showing treatment for COPD exacerbations and a December 2012 finding of widespread bronchial wall thickening with central and lower lung zone predominance and bilateral basilar scarring. --An April 2012 private treatment record that the Veteran had a history of Agent Orange exposure and asbestos exposure building jet ways; he had COPD and his lungs had inspiratory rhonchi and faint crackles. The examiner noted that the Veteran had welding, asbestos, and Agent Orange exposures and was in the right demographic for idiopathic pulmonary fibrosis with tobacco history; the final impression was mild bronchitis/ COPD. --January 2015 and June 2015 private chest x-ray reports showing mild bronchial thickening, which might represent an acute or chronic large airway inflammatory process; with an impression of bronchitis acute or chronic, no pulmonary consolidation. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems, including interstitial lung disease, are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. (x). Obstructive sleep apnea. (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea had its clinical onset during active service or is related to any in-service disease, event, or injury, including service in Vietnam and/ or exposure to herbicides in service. In making these assessments please consider the following evidence: --The post-service treatment records showing a sleep study in February 2006 showing obstructive sleep apnea; with follow-up sleep studies in August 2007 and April 2012. --The Veteran's history of tobacco use for 30 plus-years, quitting in approximately 2003. --An August 2008 and May 2011 private medical statement noting that the Veteran's constellation of health problems are rare in one person's lifetime and that it was not inconceivable that exposure to toxic substances during his military service had contributed as a causative or aggravating factor to his medical conditions. 4. Ensure the examiners' opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 5. Finally, readjudicate the remaining claims on appeal with consideration of all relevant evidence submitted since the September 2015 supplemental statement of the case. If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). 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 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs