Citation Nr: 18142298 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-21 218 DATE: October 15, 2018 ORDER The petition to reopen the claim of entitlement to service connection for a psychiatric disorder is denied. The petition to reopen the claim of entitlement to service connection for diabetes mellitus is granted. The petition to reopen the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. The petition to reopen the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. The petition to reopen the claim of entitlement to service connection for tinnitus is granted. Entitlement to an effective date prior to March 16, 2017, for the award of a 60 percent rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for a disability of the nerves or nervous system, claimed as nerve condition as a result of exposure to ionizing radiation, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to gastroesophageal reflux disease (GERD) and peptic ulcer disease is remanded. Entitlement to service connection for a disability manifested by breathing difficulties, to include residuals of pulmonary embolism, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for a psychiatric disorder was denied by a December 2013 Board decision; the Veteran did not appeal the decision. 2. All of the evidence submitted since the December 2013 Board decision pertaining to a psychiatric disorder is either cumulative and redundant of prior evidence or does not relate to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s claim of entitlement to service connection for diabetes was denied by an August 2005 RO rating decision, and again in a May 2009 RO rating decision. The appellant was notified of these rating decisions and initiated an appeal of the May 2009 denial, but withdrew the appeal prior to the issuance of a Board decision; the issue was dismissed by the Board in a December 2013 Board decision. VA did not receive new and material evidence within one year following the rating decision beyond that considered in the December 2009 readjudication for the statement of the case in the appeal that was later withdrawn. 4. Evidence submitted since the May 2009 RO rating decision pertaining to the issue of entitlement to service connection for diabetes mellitus includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 5. The Veteran’s claim of entitlement to service connection for peripheral neuropathy of the right lower extremity was denied by a May 2009 RO rating decision. The appellant was notified of the decision and initiated an appeal, but withdrew the appeal prior to the issuance of a Board decision; the issue was dismissed by the Board in a December 2013 Board decision. VA did not receive new and material evidence within one year following the rating decision beyond that considered in the December 2009 readjudication for the statement of the case in the appeal that was later withdrawn. 6. Evidence submitted since the May 2009 RO rating decision pertaining to the issue of entitlement to service connection for peripheral neuropathy of the right lower extremity includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 7. The Veteran’s claim of entitlement to service connection for peripheral neuropathy of the left lower extremity was denied by a May 2009 RO rating decision. The appellant was notified of the decision and initiated an appeal, but withdrew the appeal prior to the issuance of a Board decision; the issue was dismissed by the Board in a December 2013 Board decision. VA did not receive new and material evidence within one year following the rating decision beyond that considered in the December 2009 readjudication for the statement of the case in the appeal that was later withdrawn. 8. Evidence submitted since the May 2009 RO rating decision pertaining to the issue of entitlement to service connection for peripheral neuropathy of the left lower extremity includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 9. The Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied by a December 2013 Board decision; the Veteran did not appeal the decision. 10. Evidence submitted since the December 2013 Board decision pertaining to the issue of entitlement to service connection for bilateral hearing loss includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 11. The Veteran’s claim of entitlement to service connection for tinnitus was denied by a July 2010 Board decision; the Veteran did not appeal the decision. 12. Evidence submitted since the July 2010 Board decision pertaining to the issue of entitlement to service connection for tinnitus includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 13. A December 2015 RO final decision adjudicated the initial rating assignment for the Veteran’s hiatal hernia (also diagnosed as GERD) and peptic ulcer disease. 14. A claim for an increased rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease was received March 16, 2017; there is no document in the claims file prior to that date that could be construed as a pending claim following the December 2015 RO final decision that resolved all prior claims concerning this disability rating. 15. It is not factually ascertainable that an increase in the severity of the Veteran’s hiatal hernia (also diagnosed as GERD) and peptic ulcer disease occurred within one year prior of the March 16, 2017, date of claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156, 20.1100. 2. The criteria for reopening the claim of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3. The criteria for reopening the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 4. The criteria for reopening the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 5. The criteria for reopening the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156, 20.1100. 6. The criteria for reopening the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156, 20.1100. 7. The criteria for an effective date prior to March 16, 2017, for the award of a 60 percent rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease have not been met. 38 U.S.C. §§ 5103, 5103A, 5110, 7105; 38 C.F.R. §§ 3.1(p), 3.104(a), 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for cirrhosis is before the Board on appeal from an April 2015 RO rating decision that denied that claim. The issue of entitlement to an earlier effective date for the grant of a 60 percent rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease is before the Board on appeal from a June 2017 RO rating decision that awarded the rating and assigned the current effective date for that award. Each of the other issues on appeal are before the Board from a June 2014 RO rating decision that denied the claims. In accordance with his request, the Veteran was scheduled to testify at a Board videoconference hearing in August 2018. However, the Veteran failed to report for the hearing and has neither presented good cause for the failure to report nor requested rescheduling of the hearing. The Board shall therefore proceed with appellate review of this case. The Board notes that the December 2015 statement of the case (SOC) that included the psychiatric disorder service connection claim on appeal before the Board additionally included claims of entitlement to service connection for Charcot foot, gall bladder removal, and left leg amputation below the knee. Notably, however, the Veteran clearly indicated on the pertinent January 2016 VA Form 9 Substantive Appeal for the December 2015 SOC that he was specifically limiting his appeal from that set of issues to the “psychiatric disorder issue,” and not including the Charcot foot, gall bladder removal, or left leg amputation issues in his appeal. Accordingly, the excluded issues are not before the Board or in appellate status at this time. The Board notes that a December 2013 Board decision issued by a different Veterans Law Judge (VLJ), other than the undersigned, remanded a claim of entitlement to service connection for a stomach disability, including GERD and peptic ulcer disease. The Veteran had testified before that VLJ at a Board videoconference hearing in March 2010. The only issue before the Board in December 2013 that remained pending following the Board decision at that time was the GERD/peptic ulcer issue, and that issue was resolved in full when the claim was granted in a December 2015 RO rating decision. Accordingly, this new appeal before the Board has been assigned to the undersigned VLJ; the issues addressed in the March 2010 Board hearing are not associated with the new appeal currently before the Board, and the VLJ who conducted that hearing is not associated with this distinct new appeal before the Board. The Board also notes that the Veteran’s claim of entitlement to service connection for a breathing disorder has been presented somewhat vaguely at times, but appears to be reasonably associated with the Veteran’s residual respiratory disability associated with a pulmonary embolism; the record reflects that the Veteran has been prescribed oxygen therapy for the residuals of pulmonary embolism, and the Veteran cites that oxygen therapy prominently in his appeal on the “breathing” disability issue. Although the pulmonary embolism has featured in the Veteran’s contentions for other claims that are not currently on appeal, the Board finds that the “breathing” disability with prescribed oxygen therapy currently featured in this appeal reasonably includes or features the residual impairment from pulmonary embolism. The Board has recharacterized the issue accordingly. Petitions to Reopen Service Connection Claims Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. 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 substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the ‘phrase raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, at which time VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3). Absent the submission of evidence that is sufficient to reopen the claim, the Board’s analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran’s petitions to reopen service connection claims in this case. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection also may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Further, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, including in VA’s electronic data storage system, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. The petition to reopen the claim of entitlement to service connection for a psychiatric disorder is denied. A December 2013 Board decision denied service connection for a psychiatric disorder. The basis of the denial of service connection for a psychiatric disorder featured the Board’s finding that: “The Veteran’s current psychiatric disability did not have its onset during his military service, nor is it otherwise related to a disease or injury during active military service.” The December 2013 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Following the prior final Board adjudication, the RO has processed correspondence from the Veteran as raising a petition to reopen the psychiatric disorder service connection claim. At the time of the final Board decision in December 2013, the evidentiary record featured lay statements, medical opinions, service treatment records, and post-service medical records. Some of the Veteran’s lay statements of record at the time of the pertinent prior final adjudication asserted that he recalled onset of psychiatric symptoms beginning during service; the Board’s final adjudication of the issue concluded that the psychiatric disorder did not have onset during service and was not shown to be etiologically linked to military service. Since the prior final Board decision, additional documents and medical evidence received by VA continue to indicate that the Veteran suffers from a psychiatric disorder. None of the new evidence received after the final decision includes any new manner of indication of in-service onset or other form of nexus between the Veteran’s military service and his psychiatric disorder. The prior final adjudication considered the Veteran’s testimony suggesting in-service onset of the psychiatric disorder, and subsequent further such assertions are cumulative and redundant of the previously considered testimony. No new medical evidence or testimony has materially indicated any basis for finding a causal / etiological link between the Veteran’s psychiatric disorder and his military service. The new evidence does not tend to establish any previously unestablished element of entitlement to service connection for a psychiatric disorder. The Veteran has not otherwise presented any testimony or evidence that indicates any pertinent new information or development that would tend to establish a previously unestablished element of entitlement to service connection for a psychiatric disorder. Accordingly, evidence added to the record after the prior final Board decision of December 2013 may be new, but it is not material. The evidence added to the record since the prior final Board decision of December 2013 presents no reasonable possibility of substantiating the claim, and such evidence is not new and material for the purpose of reopening the claim. Following review of the contents of the claims-file, the Board is unable to find that any item of evidence received since the prior final Board decision of December 2013 is new and material to the issue of entitlement to service connection for a psychiatric disorder. Any added material evidence is duplicative of evidence already of record, and the new evidence is not materially pertinent to elements of service connection that were unestablished at the times of the prior final denials. The prior final denials were based upon the absence of a showing of a nexus between military service and any current psychiatric disorder, and none of the new evidence submitted after the prior final denial tends to materially establish such a nexus. To the extent that the added evidence reiterates the Veteran’s assertion that a psychiatric disorder began during service, including with reference to his description of in-service anxiety regarding the possibility of being deployed to Vietnam during the Vietnam War, such assertions were of record and considered in the Board’s prior final adjudications of the claim, including in the Veteran’s March 2010 Board hearing testimony. To the extent that the added evidence further reiterates that the Veteran is diagnosed with a psychiatric disorder, this fact was previously established at the time of the Board’s prior final adjudication. Aside from the repetitive, cumulative, or redundant evidence, there is no new evidence indicating that any current psychiatric disorder had onset during service or is otherwise etiologically / causally related to any aspect of military service. Overall, the Board finds that the new evidence does not relate to any unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a psychiatric disorder. For the above-discussed reasons, the Board concludes that the appellant has not presented new and material evidence to reopen the claim. Accordingly, the Board must deny this petition to reopen the claim of entitlement to service connection for a psychiatric disorder. See 38 U.S.C. § 5108. New and material evidence has not been received, and the claim of entitlement to service connection for a psychiatric disorder may not be reopened. 2. The petition to reopen the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. 3. The petition to reopen the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. 4. The petition to reopen the claim of entitlement to service connection for diabetes mellitus is granted. 5. The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. 6. The petition to reopen the claim of entitlement to service connection for tinnitus is granted. The Board finds that new and material evidence has been received to reopen the claims of entitlement to service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, diabetes mellitus, bilateral hearing loss, and tinnitus. The Board is required to consider each question of whether new and material evidence has been received to reopen each of these claims, without regard to the RO’s determinations, in order to establish the Board’s jurisdiction to address the underlying claims and to adjudicate them on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). As a preliminary matter, the Board finds that each of the pertinent issues has been previously denied by VA in a final decision, and that the basis of each prior final denial was essentially a finding that no nexus was shown between the claimed disability and the Veteran’s military service. In May 2009, following a prior VA denial of the Veteran’s claim of entitlement to service connection for diabetes mellitus, an RO rating decision denied entitlement to service connection for diabetes mellitus, service connection for peripheral neuropathy of the right lower extremity, and service connection for peripheral neuropathy of the left lower extremity. The Veteran initiated an appeal of the decision denying these claims; the claims were readjudicated with the issuance of a statement of the case in December 2009. The Veteran withdrew the appeal with regard to these three issues prior to the issuance of a Board decision; these three issues were accordingly dismissed by the Board in a December 2013 Board decision. VA did not receive new and material evidence within one year following the rating decision (beyond that considered in the December 2009 readjudication for the statement of the case in the appeal that was later withdrawn). 38 C.F.R. § 3.156(b). The May 2009 RO denial is final with regard to these three issues. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. The basis of the earlier August 2005 RO denial of service connection for diabetes mellitus featured a finding that the Veteran’s diabetes was not related to service, including with a finding that the Veteran was not exposed to tactical herbicide agents (such as Agent Orange) during his military service. The December 2009 final RO denial of service connection for diabetes mellitus was based upon a finding that no new and material evidence had been received to reopen the claim at that time. The December 2009 final RO denial of service connection for peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity featured a finding that the Veteran’s lower extremity peripheral neuropathies were not shown to be related to his military service, but rather were etiologically linked to his non-service-connected diabetes mellitus. A July 2010 Board decision denied service connection for tinnitus. The basis of the denial of service connection for tinnitus featured the Board’s finding that: “Tinnitus is not related to the Veteran’s active service.” The July 2010 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A December 2013 Board decision denied service connection for bilateral hearing loss. The basis of the denial of service connection for bilateral hearing loss featured the Board’s finding that: “The Veteran’s current bilateral hearing loss did not have its onset in service, nor is it otherwise related to a disease or injury during his military service, and sensorineural hearing loss was not shown to be compensably disabling within one year of separation from active duty.” The Veteran did not timely appeal the December 2013 Board decision. The December 2013 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Following the prior final adjudications, the RO has processed correspondence from the Veteran as raising petitions to reopen the claims of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, tinnitus, and bilateral hearing loss. The Board finds that new and material evidence has been presented sufficient to reopen these claims. In January 2014, the Veteran introduced the new assertion that he was exposed to ionizing radiation during service that he believes may have caused his diabetes and peripheral neuropathy. The statement prompted the RO to research service personnel records to determine whether the Veteran engaged in a radiation risk activity. In June 2014, the Veteran again submitted a statement indicating that he experienced “radiation exposure” during military service. In August 2014, the Veteran specified that he was exposed to radiation during duty assignments at a missile base in Ohio and additionally at “White Sands Missile Station” in New Mexico. Additional statements, including one submitted in June 2015, reiterate these contentions. The new testimony regarding radiation exposure introduces a potentially pertinent in-service injury/exposure to which the Veteran attributes his diabetes and/or peripheral neuropathies. Although the Veteran’s reported radiation exposure may not yet be confirmed, and although diabetes and peripheral neuropathy may not currently be established as radiogenic diseases by the evidence of record, the Veteran reasonably may potentially establish entitlement to service connection for these disabilities as due to the newly indicated radiation exposure on a direct basis through additional evidence. Presuming the credibility of this new testimony for the limited purposes of considering the petition to reopen these claims, the Board finds that the testimony regarding radiation exposure meets the “low threshold” described by the Court to enable reopening claims. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Regardless of whether sufficient evidence to establish entitlement has been received at this time, the new testimony regarding in-service radiation exposure would, if true, tend to establish a previously unestablished element (potentially pertinent in-service event/injury) in support these claims. The Board finds that new and material evidence has been submitted on the issues of entitlement to service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and diabetes mellitus following the prior final denials of these claims. Accordingly, the Board has reopened the claims of entitlement to service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and diabetes mellitus at this time. The Board must also consider the Veteran’s further petitions to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus. In these regards, the Board observes that the evidentiary record suggests that the Veteran’s tinnitus is linked to his hearing loss pathology, and the hearing loss pathology is suggested to be a sensorineural disability. The Veteran has claimed that he suffers from nerve / neurological impairment due to radiation exposure. Furthermore, the Veteran’s statements, including an April 2016 statement, suggest that he has been told by a medical professional that his tinnitus and hearing loss may be related to his diabetes (“I have Diabetic[] Ringing My Ears Doctor Said Right Ear Was About going [deaf].”). The Board observes that the Veteran’s sensorineural hearing loss and tinnitus may potentially be associated nerve damage from his diabetes; the Board notes that the Veteran’s hearing loss pattern at least in one ear has been characterized in a May 2006 audiologist’s examination report as “not typical noise-induced pattern,” suggesting an etiology other than noise exposure. In light of the “low threshold” for reopening claims, discussed above, the Board finds that the significant new testimony regarding in-service radiation exposure is sufficiently material to the hearing loss and tinnitus claims to reopen those claims, by virtue of the testimony’s significance to the Veteran’s claim of nerve damage due to radiation exposure and the significance of the fact that the testimony has led to the reopening of the claim for service connection for diabetes which may reasonably affect the outcome of the Veteran’s hearing loss and tinnitus claims. The new evidence materially indicates possible bases for linking the Veteran’s hearing loss and tinnitus to military service or to service-connected disability. In summary, the Board finds that the Veteran’s new testimony indicating in-service exposure to ionizing radiation is material evidence sufficient to meet the “low threshold” to reopen the claims of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, bilateral hearing loss, and tinnitus. Accordingly, these claims are now reopened. 7. Entitlement to an effective date prior to March 16, 2017, for the award of a 60 percent rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease is denied. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(2). As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Under current regulations, applicable for the entire period since a December 2015 RO rating decision assigned an initial disability rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease, the term “claim” means a written communication requesting a determination of entitlement or evidencing a belief under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information, or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). The United States Court of Appeals for the Federal Circuit has explained that the provisions of 38 U.S.C. § 5110 governing the effective date to be assigned for an increased rating require “that a veteran’s claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims). Thus, when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier. See 38 C.F.R. § 3.400 (o)(2). The Veteran contends that he is entitled to an effective date in December 2005 for the award of the 60 percent rating for hiatal hernia and peptic ulcer, as indicated in his October 2017 correspondence. The Veteran’s July 2017 notice of disagreement explained that “your 60% [rating assignment] was ok but I think you should pa[y] me back to 2005 wh[e]n I sign[ed] up for it.” The Veteran clearly reiterated the nature of his contention in a September 2017 statement: “I should have be[e]n paid from 2005 not 2017.” Historically, in a December 2015 rating decision, the RO granted service connection for “hiatal hernia (also diagnosed as GERD) and peptic ulcer disease,” and assigned a 20 percent initial rating effective from December 15, 2005. In February 2016, the Veteran filed a VA Form 21-0958 Notice of Disagreement with regard to this decision, expressing “[d]isagreement with this settlement giving Jan Dils [the Veteran’s past attorney representative] 20% of my settlement.” This disagreement did not challenge the substance of the rating decision’s award, rating, and effective date assignments. No new and material evidence regarding the assigned disability rating or effective date was received within a year of the December 2015 rating decision, and the Veteran did not otherwise appeal the substantive determinations of the December 2015 rating decision. The claims-file documents that the RO acknowledged, in a March 2017 letter to the Veteran: “We received your intent to file on March 16, 2017. You indicated you would like to file a claim for compensation.” A June 2017 RO rating decision granted an increased 60 percent rating for the hiatal hernia (also diagnosed as GERD) and peptic ulcer disease. The June 2017 RO rating decision assigned an effective date of March 16, 2017, for this increased rating, citing that this “is the date we received your intent to file a claim.” The award of the increased rating in the June 2017 RO rating decision was based upon medical findings presented in a May 2017 VA examination report. The Veteran appealed the June 2017 RO rating decision to the extent of seeking an earlier effective date for the award of the 60 percent rating, as discussed above. A key determination to be made in resolving this claim is whether the grant of the 60 percent rating arose from any claim that was pending prior to the March 16, 2017, date of claim identified by the RO. The Board finds that no earlier claim pertaining to the assignment of a disability rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease was pending at the time of the June 2017 RO rating decision that made the award. The claims-file contains no suggestion that the Veteran raised any such claim after the December 2015 RO rating that made the initial rating determination with the award of service connection for the pertinent disability earlier than March 16, 2017. The Veteran has not alleged that he filed such a claim after the December 2015 RO rating decision earlier than March 16, 2017. This is significant, because the December 2015 RO rating decision made a formal determination of the proper initial disability rating assignment for the pertinent disability, and a final decision on such a determination would have resolved all prior such claims on the matter such that the prior claims would not have remained pending following the December 2015 RO rating decision becoming final. 38 C.F.R. § 3.104(a). The Board finds that the December 2015 RO rating decision did become a final decision, resolving all prior claims concerning a disability rating assignment for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease. The Board has considered that any new and material evidence with regard to the rating determination, if received within a year of the December 2015 RO rating decision, would have prevented the rating decision from becoming final in that regard and required a readjudication of the rating determination. 38 C.F.R. § 3.156(b). However, no new and material evidence concerning the rating determination was received within a year of the December 2015 RO rating decision, and the Veteran has not contended otherwise. Additionally, the Board finds that the Veteran did not timely appeal the rating determination within the one-year period for such an appeal. The Board finds that the Veteran’s February 2016 expression of disagreement concerning the payment of a portion of his award to his former attorney was not an appeal of the rating determination itself, nor did it otherwise prevent the rating determination itself from becoming a final decision. The Veteran did not appeal the December 2015 rating decision, and no new and material evidence was submitted within a year following notification of the December 2015 rating decision. 38 C.F.R. § 3.156(b). The December 2015 RO rating determination regarding the rating assignment for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease is therefore final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. Any and all claims concerning disability compensation / rating assignment for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease prior to the December 2015 RO rating decision have been resolved by a final VA decision and accordingly ceased to be pending matters. As neither the Board’s review nor the Veteran’s contentions identify any claim seeking an increased rating for hiatal hernia (also diagnosed as GERD) and peptic ulcer disease between the time of the December 2015 RO rating decision and the March 16, 2017, date of claim recognized by the RO, there is no basis in this case for identifying a date of claim prior to March 16, 2017, in connection with the grant of a 60 percent rating for the pertinent disability in the June 2017 RO rating decision. The correct date of claim in this case is March 16, 2017. The Board has considered whether there is any other date prior to March 16, 2017, that could form the basis for an earlier effective date, but the Board finds that there is not. The United States Court of Appeals for Veterans Claims (Court) and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). In this case, the Board finds no evidence making it factually ascertainable that the Veteran’s hiatal hernia (also diagnosed as GERD) and peptic ulcer disease underwent an increase in severity to meet the criteria for a 60 percent rating on any identifiable date within a year prior to the March 16, 2017, date of claim. In this regard, the Board finds that the evidence pertaining to the one-year period prior to March 16, 2017, does not reveal any ascertainable increase in the severity of the disability during that period, and thus further discussion of the rating criteria for a 60 percent rating is not necessary in this analysis. As noted above, the effective date of an increase “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The evidence of record reflects that the Veteran’s earliest pending application for the increase granted in June 2017 was filed on March 16, 2017; thus, an effective date prior to that is not warranted on the basis of a date of claim. The Board has also considered the exception under 38 C.F.R. § 3.400 (o)(2). If the Veteran’s hiatal hernia (also diagnosed as GERD) and peptic ulcer disease worsened at any identifiable time between March 2016 to March 2017, the Veteran may be entitled to an increased rating from that date of worsening. However, and importantly, the Veteran has not asserted that the onset of his worsening was in 2016 or 2017. Rather, the Veteran has pursued this appeal with assertions featuring reference to the fact that he first filed a claim in 2005 and that his history of pertinent symptomatology dates back many years, including in his statements dated in July 2017, September 2017, and October 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 4. Entitlement to service connection for a disability of the nerves or nervous system, claimed as nerve condition as a result of exposure to ionizing radiation, is remanded. 5. Entitlement to service connection for bilateral hearing loss is remanded. 6. Entitlement to service connection for tinnitus is remanded. 7. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to gastroesophageal reflux disease (GERD) and peptic ulcer disease, is remanded. 8. Entitlement to service connection for a disability manifested by breathing difficulties, to include residuals of pulmonary embolism, is remanded. The Veteran has reopened six claims of entitlement to service connection through the presentation of new testimony detailing reported exposure to ionizing radiation during his military service. Now that the claims are reopened for adjudication on a de novo basis, the Board must ensure that the evidentiary record is adequate for informed appellate review of all pertinent contentions. The Veteran has contended that he suffers from disabilities, including diabetes mellitus and peripheral neuropathies of the lower extremities, as the result of exposure to herbicides during his military service. The Veteran does not contend that he served in the Republic of Vietnam during the Vietnam War, but rather has contended that he was exposed to toxic herbicides during his service at a base in “Painesville, Ohio.” Although some of the Veteran’s statements refer to “pesticides” and/or the use of “herbicides” to kill “mosquitos,” the Veteran also submits statements (including in December 2013) that sufficiently clearly allege that he was exposed to “herbicides” without indication of confusion between pesticides and herbicides. The Board understands the Veteran’s references to toxic herbicide exposure during the Vietnam Era to be reasonably clearly intended to reference tactical herbicide agents (such as Agent Orange) from that era associated with certain disabilities, including type II diabetes mellitus. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A remand is necessary for the AOJ to complete and document an attempt to verify the Veteran’s alleged herbicide exposure in Painesville, Ohio. The Veteran is to be requested to provide the approximate dates, location, and nature of the alleged exposure. If such information is obtained, the AOJ should furnish the Veteran’s detailed description of the exposure to VA’s Compensation Service via email and request a review of the Department of Defense’s (DoD’s) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service’s review does not confirm that herbicides were used as alleged and the Veteran has provided sufficient information to permit a search by the Joint Services Records Research Center (JSRRC), a request should be sent to JSRRC for verification of exposure to herbicides. The other issues on appeal being remanded at this time are inextricably intertwined with the claim of entitlement to service connection for diabetes mellitus, as these issues feature disabilities that may be etiologically linked to the Veteran’s diabetes mellitus. The Board notes that some of the Veteran’s statements in this case have suggested that he considers his various medical disabilities to be linked to his diabetes. These issues must be remanded for completion of the necessary development concerning the alleged pertinent herbicide exposure. The matters are REMANDED for the following action: 1. Associate with the claims file any VA and non-VA treatment reports that are not already of record related to the Veteran’s disabilities at issue in this appeal. 2. Attempt to verify the Veteran’s asserted in-service exposure to toxic herbicide agents, including in Painesville, Ohio. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure. The AOJ must request a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or tested in Painesville, Ohio (or any other pertinent service location the Veteran cites) during or around the time the Veteran was stationed there. If the Veteran’s exposure is not verified by the request to the Compensation Service, verification should be sought from JSRRC. In this regard, forward a list of the Veteran’s service dates and pertinent duty locations and the Veteran’s contentions regarding the nature of his exposure to herbicides to JSRRC, and request verification of his exposure to herbicides. The results of these development efforts should be outlined in a memorandum or otherwise documented for the record. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel