Citation Nr: 1642871 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 10-11 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD). 2. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for a left knee disorder. 3. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for a lumbar spine disorder, to include as secondary to the left knee disorder. 4. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for infection with the hepatitis C virus. 5. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for the residuals of acute viral hepatitis. 6. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. 7. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral ankle disorders. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran appellant served on active duty in the United States Army from July 1976 to June 1977. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2013, a videoconference hearing was held between San Antonio, Texas and the Board in Washington, DC before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. The Board most recently remanded the case for additional development in December 2014 and December 2015. The case has now been returned to the Board for appellate review. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, GERD had its onset during service. 2. In a September 2004 rating decision, the RO denied the Veteran's claim for service connection for back problems, to include as secondary to a left knee disability. In that same decision the RO declined to reopen the claims for service connection for a left knee disability and hepatitis C. The Veteran filed a timely notice of disagreement with this decision; the RO issued a statement of the case, but the Veteran did not file a timely substantive appeal, and the decision became final. 3. Evidence received since the September 2004 rating decision is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claims for service connection for a left knee disability, back problems and hepatitis C. 4. An October 1987 Board decision denied the Veteran's claims for service connection for residuals of hepatitis and bilateral ankle disorders; that decision is final. 5. The evidence added to the record since the October 1987 Board denial, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for residuals of hepatitis and bilateral ankle disorders. 6. In a January 2003 rating decision, the RO declined to reopen the claim for service connection for bilateral hearing loss; the Veteran did not file a notice of disagreement and no new and material evidence was received within the appeal period. Thus, the January 2003 rating decision is final. 7. Evidence received since the January 2003 rating decision is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. GERD was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. New and material evidence has not been received to reopen the claim for service connection for a left knee disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2016). 3. New and material evidence has not been received to reopen the claim for service connection for a lumbar spine disorder, to include as secondary to the left knee disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2016). 4. New and material evidence has not been received to reopen the claim for service connection for hepatitis C virus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2016). 5. New and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2016). 6. New and material evidence has not been received to reopen the claim for service connection for residuals of hepatitis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2016). 7. New and material evidence has not been received to reopen the claim for service connection for bilateral ankle disorders. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(c) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, VCAA notice was provided by correspondence in January 2016. The claims were last adjudicated in March 2016. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post-service treatment records, Office of Personnel Management medical records and Social Security Administration records. While in a statement in January 2016 the Veteran claimed that there were outstanding VA treatment records, specifically, records from New Orleans VA Medical Center (VAMC) from July 1984 to August 2005; South Texas Veterans Healthcare System from August 2005 to the present, and; Desert pacific Health care System from September 1977 to June 1984, the Board finds that all reasonable attempts to obtain outstanding treatment records have been exhausted and any further attempts to obtain them would be futile. Pursuant to prior Board remand instructions attempts were made to retrieve any outstanding treatment records, including records from New Orleans VAMC starting in 1977. Specific to the New Orleans VAMC treatment records the Agency of Original Jurisdiction (AOJ) was informed that the records only went back to mid-1980s, and these records have been associated with the claims file. Additionally, VA examination and opinions addressing the claim for entitlement to service connection for a gastrointestinal disorder were obtained. Pertaining to the Veteran's application to reopen the claims for entitlement to service connection for a left knee disorder, a lumbar spine disorder, bilateral ankle disorders, bilateral hearing loss, residuals of acute viral hepatitis, and infection with the hepatitis C virus, as new and material evidence has not been submitted to reopen the Veteran's claims, the duty to assist by obtaining a medical examination and opinion does not attach. 38 C.F.R. § 3.159(c)(4)(iii). Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant contends that he incurred a gastrointestinal disorder during service including as a residual of a post-operative stab wound of abdomen with incidental appendectomy. In the alternative, he asserts that the condition is secondary to a service-connected disability, including the small bowel obstruction. The evidence shows that the Veteran has been diagnosed and treated for a gastrointestinal disorder during the pendency of this appeal, to include GERD. Having determined that the Veteran currently has a diagnosed gastrointestinal disorder, the remaining question before the Board is whether such disability is related to his service or a service-connected disability. Service treatment records show that in December 1976 the Veteran sustained a stab wound that required exploratory laparoscopy. In February 1977 the Veteran was seen for gastrointestinal symptoms. An undated treatment note also recorded gastrointestinal complaints with an assessment of rule out reflux or spasm. He was treated with Mylanta. On separation from service in May 1977 the Veteran endorsed a medical history of stomach, liver or intestinal trouble, and on the physical examination portion, abdominal pain was verified in record. After service, VA treatment in 1993 documented symptoms of spastic colon. VA treatment records after 1998 documented GERD. In February 1999 he was seen for blood per rectum constipated, an assessment of rule out hemorrhoids/diverticulitis was noted. In 2007 a clinician noted complaints of dyspepsia, along with a history of H pylori and ulcer. On VA examination in February 1999, the examiner noted that the Veteran was status post-stab wound to the abdomen with a subsequent repair and a history of appendectomy, incurred during service. The Veteran reported stomach problems since that time, including constant abdominal pain associated with vomiting. He denied hematemesis, but endorsed hematochezia. A VA medical opinion was obtained in July 2014. The physician noted that review of records showed that the Veteran sustained a stab wound in December 1976 for which he required exploratory laparoscopy. The physician noted that the service treatment records documented that on follow up, a few days after the surgery, he was seen for increased pain while still recovering from the stab wound/surgery, and again in March 1977. No additional pathology or hernia was found. After service, the Veteran was diagnosed with diverticulosis, not diverticulitis, and internal hemorrhoids by a 2008 colonoscopy. GERD was documented in a problem list as well. The physician opined that the Veteran's small bowel obstruction was the only one of the gastrointestinal conditions that was a possible residual of the abdominal stab wound and the resulting surgery. There were multiple causes for small bowel obstruction, adhesions being the most common cause. The physician further stated that she was unable to determine whether any of the Veteran's claimed gastrointestinal pathology, including GERD, was caused or aggravated to any degree by a service connected disability, including the small bowel obstruction, without resorting to mere speculation. She did not address whether the GERD may have had its onset in service. In June 2015, the physician who rendered the July 2014 opinion noted that the service treatment records contained an undated clinical treatment note that recorded gastrointestinal symptoms along with a differential diagnosis of reflux or spasm. He was treated with Mylanta. Thereafter on separation from service in May 1977, he endorsed a history of stomach trouble and on the physical examination portion, abdominal pain was verified. After separation from the military he was diagnosed with hepatitis in 1986 and was hospitalized at its onset. He was seen several times for abdominal pain through 1988 without additional diagnosis. A September 1987 esophagogastroduodenoscopy procedure revealed no abnormalities, but did show post prandial gas. Also as part of that workup, a note dated in June 1988 summarized 1987 UGI with SBFT that showed no terminal ileitis, and a flex sig in March 1988 was normal. He was seen for symptoms of GERD in 1999 and was started on medication. In February 1999 he was seen and treated for constipation and pain with defecation, and in August 1999 an upper gastrointestinal series (UGI) showed no evidence of ulcer. However, January 2000 treatment notes documented that an UGI showed antral ulcerations. Thereafter a UGI in February 2002 showed normal swallow, esophagus, stomach and duodenum. The physician concluded that that there was only one note presumably in 1977 that noted possible reflux or spasm. Therefore, she indicated that she was unable to prove continuity of the Veteran's gastrointestinal symptomatology, to include treatment for ulcers, from 1978 to the present. Thereafter in January 2016, a different physician, following a review of the Veteran's claims file, rendered an opinion addressing the Veteran's contentions. The physician reported that he was unable to conclude without speculation when the Veteran's GERD initially manifested. In this regard, the physician noted that the service treatment records in April 1977 showed complaints of sharp and tearing left sided chest pain, unrelated to meals. While these symptoms were not classic for GERD, these could represent atypical presentations. The assessment made by the examiner that date was that of chest pain or unclear etiology, "rule out esophageal reflux or spasm." He was treated with Mylanta and viscous lidocaine. Thereafter the first mention of a formal diagnosis of GERD was in 1998. There were multiple GI clinical encounters between the April 1977 complaint of chest pain and the formal clinical diagnosis of GERD, during which there is no mention of any GERD-type symptoms. In any event, regardless of the initial manifestation of GERD, his GERD could not be attributed to being caused by his adhesive disease resulting from his in-service stab wound and resulting operation, nor had his small bowel obstruction caused his GERD. The physician also noted that the available records supported a diagnosis of stomach ulcer (peptic ulcer disease) insomuch as an upper GI series performed in August 1999. A clinic note dated in January 2000 showed complaints of postprandial dyspepsia and vomiting for the preceding four weeks. Based on these complaints, the upper GI series, and a positive H. pylori serology, he was treated for H. pylori gastritis and stomach ulcer with a two-week course of Biaxin, amoxicillin, and Prevacid. A follow-up GI clinic note on July 2000 documented resolution of the Veteran's dyspepsia, and upper GI series dated in February 2002 showed that it had normalized. Thus, he was treated for an H. pylori related stomach ulcer in 2000. However, the records failed to show documentation supporting a diagnosis of stomach ulcer or peptic ulcer disease prior to August 1999. Although the Veteran's December 1984 complaints of cramping, abdominal pain and black watery stools could have been caused by peptic ulcer disease, an opinion could not be rendered without resorting to speculation. In sum, the physician opined that there was no evidence of stomach ulcer or peptic ulcer disease while in military service or within a year of separation, and stomach ulcer or peptic ulcer disease could not be attributed to being caused by his adhesive disease resulting from his in-service stab wound and resulting operation, nor did his small bowel obstruction cause his stomach ulcer. The physician concluded that there was no evidence that the Veteran's acute viral hepatitis, hepatitis C virus infection, GERD, stomach ulcer or peptic ulcer disease, were caused by or aggravated by a service-connected disability, including the adhesion-related small bowel obstruction, or treatment thereof. The VA physician in January 2016 determined that the stomach ulcer or peptic ulcer disease did not have its onset in service and that there was no evidence that the Veteran's GERD and stomach ulcer or peptic ulcer disease were caused by or aggravated by a service-connected disability, including the adhesion-related small bowel obstruction, or treatment thereof. While the VA physician stated that he was unable to conclude without speculation when the Veteran's GERD initially manifested, he noted possible symptoms of reflux in service and indicated that these could represent atypical presentations of the disease. Thus, it is possible that the condition initially manifested in service, although it was not diagnosed until several years after service discharge. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. In this matter, the Board is of the opinion that this point has been attained, based on the Veteran's competent and credible report of GERD type symptoms beginning in service and since service, as well as the positive and negative medical evidence, one of which is a competent medical statement that supports the Veteran's contentions; that is, the January 2016 physician's opinion report which indicated that gastrointestinal symptoms recorded in service may have been a manifestation of the Veteran's GERD although it was not diagnosed until many years after service discharge. Additionally, the Veteran's lay assertions that symptoms of GERD, including reflux, began during service are of probative value. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Accordingly, service connection for GERD is warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Left knee disorder In October 1985, the RO denied service connection for a left knee disability on the basis that the service records were completely absent of any complaints of, treatment for or diagnosis of left knee condition and there was no evidence that the claimed disorder was incurred in or aggravated by service. The Veteran appealed to the Board and in a decision in October 1987 the Board denied the Veteran's claim for service connection for residuals of left knee meniscectomy because the evidence failed to show that the condition was incurred in or aggravated by military service. Thereafter, in a rating decisions in August 1993 and September 2004, the RO declined to reopen the claim for service connection for a left knee disability because new and material evidence had not been presented to reopen the claim. The Veteran filed a timely notice of disagreement. In August 2005 the RO issued a statement of the case, but the Veteran failed to perfect a timely appeal of the September 2004 rating decision. Ultimately, the September 2004 rating decision became final because the Veteran failed to complete an appeal on the decision within the prescribed time and no new evidence pertinent to the basis of the denial of the claim was received by VA within the remainder of the appellate period. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103 (2016); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Veteran submitted a request to reopen his claim in October 2007. At the time of the September 2004 rating decision, the evidence of record consisted of service treatment records, which failed to document any complaints, treatment or findings pertaining to the left knee. On separation from service in May 1977 the Veteran denied a history of trick or locked knee and his lower extremities were clinically evaluated as normal. After service, VA treatment records in 1982 and 1983 noted that the Veteran injured his left knee playing basketball in 1981. The evidence showed that the Veteran was hospitalized in May and June 1985 at which time a left knee meniscectomy was performed. It was indicated by history that the Veteran had injured his knee at work in a fall down some stairs in April 1985. A report by the Veteran of a lateral meniscectomy in 1981 on the same knee was also noted. Subsequent VA treatment records showed ongoing complaints and treatment for a left knee disability. On VA examination in September 1985 the Veteran reported injuring his knee in service. He also related a left knee torn cartilage in 1981 and 1984. In December 2000, the Veteran reported the onset of left knee problems in 1981. Thereafter in a statement in 2005 the Veteran reported injuring his knee in service. The evidence received since the prior final denial includes treatment records that document ongoing treatment for the left knee. Such evidence is new as it was not previously of record. Moreover, such evidence must be presumed credible for the purposes of new and material evidence analysis. However, none of the evidence suggests that the left knee disability, initially noted more than one year after discharge from service, is related to service. The Board has also considered the Veteran's own lay statements and testimony associating his left knee disability with service. However, the lay statements are simply a reiteration of his previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for a left knee disability, the benefit-of-the-doubt doctrine is not applicable as to that claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Lumbar spine disability, to include as secondary to a left knee disorder In September 2004, the RO denied service connection for back problems, to include as secondary to the left knee disability, on the basis that there was no evidence of back problems in service and no evidence that back disability was incurred in or aggravated by service or service. It was also noted that service connection for a left knee disorder had not been established and thus service connection for a back disorder as secondary to the left knee disability could not be established. The Veteran filed a timely notice of disagreement. In August 2005 the RO issued a statement of the case, but the Veteran failed to perfect a timely appeal of the September 2004 rating decision and no new evidence pertinent to the basis of the denial of the claim was received by VA within the remainder of the appellate period. As such, the September 2004 rating decision became final. 38 U.S.C.A. § 7105. The Veteran submitted a request to reopen his claim in October 2007. At the time of the September 2004 rating decision, the evidence of record consisted of service treatment records, which failed to document any complaints, treatment or findings pertaining to the lumbar spine. On separation from service in May 1977 the Veteran endorsed a history of recurrent low back pain and his spine was clinically evaluated as normal. Post-service treatment records dated after 2003 contained complaints and treatment for the lumbar spine with radiculopathy. An April 2003 imaging study revealed degenerative joint disease of the lumbar spine and noted the onset of symptoms approximately 8 to 9 months earlier, with no history of trauma. The evidence received since the prior final denial includes treatment records that document ongoing treatment for a lumbar spine disability and the Veteran's testimony of the onset of symptoms in the 1990's associated with the left knee disability. Such evidence is new as it was not previously of record. Moreover, such evidence must be presumed credible for the purposes of new and material evidence analysis. However, none of the evidence suggests that the lumbar spine disability, initially noted more than one year after discharge from service, is related to service or a service-connected disability. In sum, as the evidence submitted since the September 2004 rating decision that denied the claim for service connection for back problems, to include as secondary to a left knee disability, is not new and material, the claim for service connection is not reopened and the appeal is denied. 3. Hepatitis C and residuals of acute viral hepatitis In February 1987, the RO denied service connection for hepatitis because the condition was not shown be related to service. The Veteran appealed to the Board and in a decision in October 1987 the Board denied the Veteran's claim for service connection for residuals of hepatitis because the evidence failed to show that the condition, initially noted many years after discharge from service, was incurred in or aggravated by service. As the Veteran did not appeal the Board's decision or request reconsideration, the Board's October 1987 decision is final. 38 C.F.R. § 20.1100 (2016). In September 2004 the RO denied the Veteran's claim for service connection for hepatitis C on the basis that hepatitis C was not shown to have been incurred in or aggravated by service and there is no etiological link between hepatitis C and service. The September 2004 rating decision became final because the Veteran failed to complete an appeal on the decision within the prescribed time and no new evidence pertinent to the basis of the denial of the claim was received by VA within the remainder of the appellate period. 38 U.S.C.A. § 7105. The Veteran submitted a request to reopen his claim in October 2007. The evidence of record previously considered consisted of statements from the Veteran asserting that he contracted hepatitis during service when he underwent surgery and was given blood transfusions after he was stabbed in the abdomen. Also of record were the service treatment records, which failed to document any complaints, treatment or findings consistent with hepatitis. The service treatment records also did not show that the Veteran received blood transfusions due to the abdomen stab wound and December 1976 exploratory laparotomy with incidental appendectomy. After service, VA treatment record in 1986 showed that the Veteran presented to the emergency room with complaints of feeling weak, night sweats, sore throat, and also yellow urine. He was in his usual state of health, when approximately a week earlier he experienced sweating episodes, overall soreness and also noticed that his urine was getting darker so. He was admitted with a diagnosis of acute viral hepatitis. Treatment records in 2003 recorded chronic hepatitis C with mild activity and minimal fibrosis. The evidence received since the prior final denial includes treatment records that document ongoing treatment for hepatitis and residuals thereof. Additionally, a VA physician in January 2016 reviewed the claims file and noted that the Veteran's acute viral hepatitis was initially manifested in April 1986, when the Veteran was seen for complaints of inability to eat due to abdominal pain and vomiting, with associated weakness, night sweats, and sore throat, along with pale stools and dark urine. These changes were all noted to be new and different than his baseline "good" usual state of health. An extensively documented Past Medical History for the admission did not note any ongoing liver disorders, and actually noted no history of hepatitis. He was hospitalized with abnormal liver tests in a pattern consistent with acute hepatitis. He was followed post-discharged in the GI clinic. His workup including serologies for hepatitis A and B available at the time suggested acute non-A, non-B viral hepatitis, the majority of which has come to be known as being caused by the hepatitis C virus. Over time, his transaminases decreased but did not normalize. Liver biopsy in October 1988 revealed chronic persistent hepatitis. His medical records first showed that his hepatitis C virus antibody test was reactive (positive) in August 1998. Accordingly, the physician stated that it was very likely that his presentation in April 1986 was a manifestation of acute hepatitis C virus infection, which is experienced symptomatically in 15 percent of patients. There was no indication in the records of any manifestation of acute viral hepatitis or of hepatitis C virus infection prior to 1986. There were no signs or symptoms of acute viral hepatitis or hepatitis C virus infection noticed while the Veteran was in service or within one year of active duty service separation. The physician further found that neither the adhesive disease resulting from his in-service stab wound and resulting operation, nor his small bowel obstruction, could be concluded to be the etiologic or underlying cause of his acute viral hepatitis or hepatitis C virus infection. Therefore, there was no evidence that the Veteran's acute viral hepatitis or hepatitis C virus infection were caused by or aggravated by a service-connected disability, including the adhesion-related small bowel obstruction, or treatment thereof. Such evidence is new as it was not previously of record. Moreover, such evidence must be presumed credible for the purposes of new and material evidence analysis. However, none of the evidence reflects that he was diagnosed or treated for hepatitis during active duty, and there is no competent evidence that etiologically links post-service diagnosis or residuals of hepatitis with service or any incident therein. In fact, the competent medical evidence of record, the opinion of the VA physician in 2016, is against the claims. Also added to the claims file are additional statements from the Veteran asserting service connection for hepatitis due to blood transfusions in service. Such assertions are not new as they were considered in the prior denial. Even assuming their credibility, the statements are cumulative and cannot be considered new and material evidence. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claims for service connection for hepatitis C and residuals of acute viral hepatitis the benefit-of-the-doubt doctrine is not applicable as to that claim. See Annoni, 5 Vet. App. at 467. 4. Bilateral hearing loss In February 1987, the RO denied service connection for hearing loss on the basis that while the service treatment records documented nonorganic bilateral hearing loss the condition, which was associated with anxiety, pre-existed service and was not aggravated by it and a VA examination conducted in connection with the claim for VA benefits could not validate the existence of hearing loss. The Veteran appealed to the Board and in a decision in October 1987 the Board denied the Veteran's claim for service connection for chronic hearing loss because the evidence failed to show that the condition was incurred in or aggravated by military service. Thereafter, in a rating decisions in August 1993 and January 2003, the RO declined to reopen the claim for service connection for bilateral hearing loss because new and material evidence had not been presented to reopen the claim. The Veteran was notified of the decision and of his procedural rights by letter in February 2003. He did not submit any new and material evidence or a notice of disagreement within a year of the decision. Thus, the January 2003 rating decision is final. 38 U.S.C.A. § 7105. The Veteran submitted a request to reopen his claim in October 2007. At the time of the January 2003 rating decision, the evidence of record consisted of service treatment records, which documented bilateral, nonorganic hearing loss, for which the Veteran was given a H-3 profile for 3 weeks in 1977. Poor responses were indicated and it was recommended the Veteran be retested to establish the reliability of these findings. The Veteran was again examined in November and December 1986. On audiometric evaluation in November 1986 it was indicated that the results obtained were so invalid that it is not possible to estimate type or extent of hearing deficit (if any). Also in the record were August 1992 and May 1993 VA audio examinations with audiometric testing that failed to show a right or left ear hearing loss disability under 38 C.F.R. § 3.385. Finally, the record contained the Veteran's assertions that he developed hearing loss during service. The evidence received since the prior final denial includes treatment records which fail to show a right or left ear hearing loss disability under 38 C.F.R. § 3.385. Such evidence is new as it was not previously of record. Moreover, such evidence must be presumed credible for the purposes of new and material evidence analysis. However, none of the evidence reflects that he was diagnosed or treated for a right or left ear hearing loss disability. Further, none of the newly submitted medical evidence suggests that bilateral hearing loss is related to service. The Board has also considered the Veteran's own lay statements and testimony associating a hearing loss disability with his service. However, the lay statements are simply a reiteration of his previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. In sum, as the evidence submitted since the January 2003 rating decision that declined to reopen the claim for service connection for bilateral hearing loss is not new and material to the claim for service connection is not reopened and the appeal is denied. 5. Bilateral ankle disability In October 1985 the RO denied the Veteran's claim for service connection for bilateral ankle condition on the basis that the disability was not shown to have been incurred in or aggravated by service. The Veteran appealed to the Board and in a decision in October 1987 the Board denied the Veteran's claim for service connection for a bilateral ankle disability because the evidence failed to show that the condition was incurred in or aggravated by military service. As the Veteran did not appeal the Board's decision or request reconsideration, the Board's October 1987 decision is final. 38 C.F.R. § 20.1100 (2016). The Veteran submitted a request to reopen his claim in October 2007. The evidence of record previously considered at the time of the October 1987 Board decision consisted of the service treatment records, which failed to document any complaints, treatment or findings pertaining to either ankle. On separation from service in May 1977 the Veteran's feet and lower extremities were clinically evaluated as normal. After service, VA treatment records which document right ankle trauma in 1983 sustained while playing basketball. A January 1983 treatment note recorded an assessment of right ankle strain. X-rays failed to reveal evidence of acute underlying osseous pathology. However, there was obliteration of the right anterior tibial bursa probably representing evidence of underlying joint effusion. A VA examination report in September 1985 noted complaints of ankle problems with unusual range of motion noted bilaterally. Imaging studies of the ankles showed a bony spur on the medial aspect of the left ankle possibly representing old trauma, otherwise x-rays were negative. The examiner noted bony ankle spur in the left ankle with no sequela. The evidence received since the prior final denial includes treatment records which document osteoarthritis as part of the Veteran's list of health issues, along with a history of an ankle fracture in 1995, and bilateral ankle fracture in 2003/2004 with degenerative changes. Such evidence is new as it was not previously of record, and must be presumed credible for the purposes of new and material evidence analysis. However, none of the evidence reflects that a right or left ankle disability was incurred in or aggravated by service. The claims file also contains additional statements from the Veteran asserting service connection for a bilateral ankle disability. Such assertions are not new as they were considered in the prior denial and even assuming their credibility, the statements are cumulative and cannot be considered new and material evidence. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claims for service connection for a bilateral ankle disorders the benefit-of-the-doubt doctrine is not applicable as to that claim. See Annoni, 5 Vet. App. at 467. ORDER Service connection for GERD is granted. The claim for service connection for a left knee disorder is not reopened, and the appeal is denied. The claim for service connection for a lumbar spine disorder, to include as secondary to the left knee disorder, is not reopened, and the appeal is denied. The claim for service connection for hepatitis C virus is not reopened, and the appeal is denied. The claim for service connection for residuals of acute viral hepatitis is not reopened, and the appeal is denied. The claim for service connection for bilateral hearing loss is not reopened, and the appeal is denied. The claim for service connection for bilateral ankle disorders is not reopened, and the appeal is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs