Citation Nr: 18140344 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-21 951 DATE: October 2, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, and, to that extent only, the claim is granted. New and material evidence has not been received to reopen a claim of entitlement to service connection for osteoarthritis, and the claim is denied. Entitlement to service connection for a peptic ulcer is denied. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. A May 2014 rating decision denied service connection for poor hearing. The Veteran was informed in writing of the adverse decision and of his appellate rights by letter in May 2014. The Veteran did not submit a timely notice of disagreement with that decision and the decision became final. 2. The evidence received since the May 2014 rating decision, to include a September 2015 diagnosis of hearing loss is new and material as it raises a reasonable possibility of substantiating the underlying claim for service connection for hearing loss. 3. A March 2012 rating decision denied service connection for osteoarthritis. The Veteran was informed in writing of the adverse decision and of his appellate rights by letter in April 2012. The Veteran did not submit a timely notice of disagreement with that decision, and the decision became final. 4. The evidence received since the March 2012 rating decision denying osteoarthritis is duplicative of what was already of record and is not new or material. 5. The preponderance of the evidence is against a finding that a peptic ulcer disability was incurred in service, or is related to any event during service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for osteoarthritis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a peptic ulcer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1946 to March 1949. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pasay City, Philippines. New and Material Evidence VA will reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss A May 2014 rating decision denied service connection for poor hearing (diagnosed as otosclerosis). The evidence of record at the time of the denial included a February 2013 medical certificate from a private examiner noting that the Veteran was receiving ongoing treatment for otosclerosis. The basis of the denial was lack of evidence showing a diagnosis of hearing loss. Following that denial, the Veteran did not initiate an appeal, and the decision became final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran initiated a request to reopen the claim for hearing loss in September 2015. Evidence received since March 2013 rating decision includes a September 2015 and September 2016 private medical record showing a diagnosis of hearing loss and private treatment records from 2015 showing treatment for hearing loss. The evidence of the earlier diagnosis of hearing loss places the Veteran’s claimed disability one year closer to his separation of service. It also raises the possibility that his hearing loss may have begun earlier than what was indicated by the medical evidence of record. Accordingly, the Board finds that the evidence received since the March 2013 rating decision is both new and material; the claim is reopened. 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for osteoarthritis A March 2012 rating decision denied service connection for osteoarthritis. The evidence of record at the time of the denial included a July 2009 medical treatment record showing a diagnosis of osteoarthritis. The basis of the denial was lack of evidence indicating a causal relationship between this condition and an event, symptom, or finding in service. The evidence also failed to show that osteoarthritis manifested to a compensable degree within one year of separation from service. Following that denial, the Veteran did not initiate an appeal, and the decision became final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran initiated a request to reopen the claim for osteoarthritis in September 2015. Evidence received since the March 2013 rating decision includes the July 2009 medical treatment record which was already of record at the time of the March 2012 rating decision. This evidence is not new and material to the Veteran’s claim of entitlement to service connection for osteoarthritis because it was already of record at the time of the original denial. Since the evidence does not meet the definition of new and material evidence, it does not satisfy the low threshold for reopening a claim. The evidence of record added since the prior, final denial does not tend to support an element of the claim not previously satisfied. See Shade v. Shinseki, 24 Vet. App. 110 (2010). As new and material evidence has not been received, the petition to reopen the claim for service connection for osteoarthritis is denied. 3. Entitlement to service connection for a peptic ulcer Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The first requirement for any service connection claim is evidence of the presence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran was diagnosed with a bleeding peptic ulcer disease. Shedden element (1) is satisfied as the Veteran has been diagnosed with a peptic ulcer. However, Shedden element (2) is not satisfied. There is no in-service incurrence or aggravation of a disease or injury in the service records and the Veteran has not alleged an in-service incurrence or aggravation of a disease or injury. Therefore, direct service connection cannot be established. The record shows that the Veteran was treated for peptic ulcers and gastrointestinal bleeding in December 2013. The Veteran is competent to report his symptoms; however, he has not reported having peptic ulcers in service or within the initial post separation year; and he has advanced no theory of entitlement linking peptic ulcers to an in-service injury, event, or disease. Accordingly, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a peptic ulcer, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran asserts that his hearing loss is the result of combat and artillery noise during his time in active service. The evidence of record shows that the Veteran was first diagnosed with otosclerosis and subsequently hearing loss. Otosclerosis is medically defined as an inherited disorder. To date, the Veteran has not received a VA examination for the purpose of determining if his current hearing loss is the result of active service, if his current hearing loss is the result of otosclerosis, or if his otosclerosis was aggravated during service. As a result, an examination is necessary. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment for bilateral hearing loss since July 2017 including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified. 38 C.F.R. § 3.159(e). 2. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran, to include records after September 2015. 3. After completing directives #1-2, schedule the Veteran for a VA audiological examination to determine the etiology of bilateral hearing loss with an examiner who has not previously examined him in conjunction with this claim. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should provide a rationale for all opinions provided. The examiner should opine as to whether it is as likely as not (50 percent or greater probability) that any identified hearing loss had its onset during active service, is related to the Veteran’s in-service noise exposure; or is otherwise related to service. If the examiner determines that the Veteran’s hearing loss is the result of otosclerosis, then the examiner should also opine if it is at least as likely as not (50 percent probability or greater) that the Veteran’s otosclerosis has been aggravated (increased in severity beyond the natural progress of the disorder) by service. The examiner should discuss the Veteran’s lay statements regarding the history and continuity of symptomatology including reports of in-service artillery and noise exposure. If the examiner determines that the Veteran’s bilateral hearing loss is not the result of active service, but should be attributed to some other cause, the examiner should so state, taking into account the Veteran’s full post-service work and medical history.   The Board acknowledges that the Veteran’s service medical records are unavailable. The Board ask that the Veteran give a heightened sense of credibility to the Veteran’s statements, buddy statements, and the medical evidence of record. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel