Citation Nr: 18143074 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 17-62 053 DATE: October 17, 2018 ORDER New and material evidence having been received, the claim of service connection for tinnitus is reopened. New and material evidence having been received, the claim of service connection for hypertension is reopened. New and material evidence having been received, the claim of service connection for gastroesophageal reflux disease (GERD) is reopened. New and material evidence having been received, the claim of service connection for asthma is reopened. Service connection for tinnitus is granted. Service connection for sleep apnea is granted. Service connection for hypertension is granted. REMANDED Service connection for GERD is remanded. Service connection for asthma is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for tinnitus was denied in a May 2003 rating decision on the basis that the evidence failed to establish an in-service injury or illness or a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. The Veteran’s request to reopen his claim for service connection for tinnitus was denied in a May 2011 Board decision on the basis of a lack of new and material evidence. It became final as of the day of its issuance. 3. Evidence received since the May 2011 Board decision raises a substantial possibility of substantiating the claim of service connection for tinnitus. 4. The Veteran’s claim for service connection for hypertension was denied in a June 2006 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision and timely disagreed with it, but withdrew the notice of disagreement. He did not submit new and material evidence within one year. The decision is final. 5. The Veteran’s request to reopen his claim for service connection for hypertension was denied in a May 2011 Board decision on the basis of a lack of new and material evidence. It became final as of the day of its issuance. 6. Evidence received since the May 2011 Board decision raises a substantial possibility of substantiating the claim of service connection for hypertension. 7. The Veteran’s claim for service connection for GERD was denied in a May 2011 Board decision on the basis that the evidence failed to establish a nexus to service. It became final as of the day of its issuance. 8. Evidence received since the May 2011 Board decision raises a substantial possibility of substantiating the claim of service connection for GERD. 9. The Veteran’s claim for service connection for asthma was denied in a May 2011 Board decision on the basis that the evidence failed to establish a nexus to service. It became final as of the day of its issuance. 10. Evidence received since the May 2011 Board decision raises a substantial possibility of substantiating the claim of service connection for asthma. 11. The probative evidence of record is at least in equipoise as to whether the Veteran’s tinnitus was a result of service or etiologically related to in-service noise exposure. 12. The probative evidence of record is at least in equipoise as to whether the Veteran’s sleep apnea is etiologically related to his service-connected anxiety disorder with posttraumatic stress disorder (PTSD). 13. The probative evidence of record is at least in equipoise as to whether the Veteran’s hypertension is etiologically related to his service-connected anxiety disorder with PTSD and his service-connected sleep apnea. CONCLUSIONS OF LAW 1. The May 2011 Board decision is final with regard to the issue of service connection for tinnitus. New and material evidence sufficient to reopen the claim of service connection for tinnitus has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1100, 20.1103 (2017). 2. The May 2011 Board decision is final with regard to the issue of service connection for hypertension. New and material evidence sufficient to reopen the claim of service connection for hypertension has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1100, 20.1103. 3. The May 2011 Board decision is final with regard to the issue of service connection for GERD. New and material evidence sufficient to reopen the claim of service connection for GERD has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1100. 4. The May 2011 Board decision is final with regard to the issue of service connection for asthma. New and material evidence sufficient to reopen the claim of service connection for asthma has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1100. 5. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 6. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 7. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1972 to July 1974. These matters are on appeal from a September 2016 rating decision. The Board notes that the Agency of Original Jurisdiction (AOJ) granted some of the Veteran’s requests to reopen claims and then denied those claims on the merits. The Board, however, must decide initially whether evidence to reopen a claim has been received without deference to any AOJ decision concerning reopening. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the issues of reopening are reflected on the title page. The issue of entitlement to a disability rating greater than 30 percent for a psychiatric disorder has been perfected by a September 2018 VA Form 9, but not yet certified to the Board. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2017). However, when an appeal is certified to the Board for appellate review and the record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a) (2017). As the required notifications have not been sent in regard to the VA Form 9 filed in September 2018, the Board declines to take any further action on this issue at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103 (2017); Gray v. McDonald, 27 Vet. App. 313, 327 (2017) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). 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. § 1110; 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Tinnitus – New and Material Evidence The Veteran contends that he has tinnitus that is etiologically related to his active duty service. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran was denied service connection for tinnitus in a May 2003 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the May 2003 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the May 2003 denial was a lack of evidence of an in-service injury or illness or a nexus to service. The Veteran’s request to reopen his claim for service connection for tinnitus was denied in a May 2011 Board decision. Board decisions are generally final as of the date of their issuance. 38 C.F.R. § 20.1100 (2017). The basis for the May 2011 denial was a lack of new and material evidence. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in May 2011, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has tinnitus as a result of active duty service. The evidence that was of record at the time of the May 2011 Board decision included the Veteran’s service treatment records and VA and private treatment records. Since the May 2011 rating decision, the Veteran has provided an August 2018 private medical opinion. The examiner opined that it is at least as likely as not that there is a nexus between the Veteran’s current tinnitus and noise exposure during his active duty service. As the record now contains more evidence pertinent to the issue of nexus to service than it did in May 2011, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 2. Hypertension – New and Material Evidence The Veteran contends that he has hypertension that is etiologically related to his active duty service. The Veteran was denied service connection for hypertension in a June 2006 rating decision. He submitted a Notice of Disagreement in September 2006 but withdrew the appeal in March 2007. He did not submit new and material evidence within one year of the rating decision. Therefore, the June 2006 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.204, 20.302, 20.1103 (2017). The basis for the June 2006 denial was a lack of evidence of a nexus to service. The Veteran’s request to reopen his claim for service connection for hypertension was denied in a May 2011 Board decision. Board decisions are generally final as of the date of their issuance. 38 C.F.R. § 20.1100 (2017). The basis for the May 2011 denial was a lack of new and material evidence. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in May 2011, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has hypertension as a result of active duty service. The evidence that was of record at the time of the May 2011 Board decision included the Veteran’s service treatment records, VA and private treatment records, and a VA examination report. Since the May 2011 rating decision, the Veteran has provided an August 2018 private medical opinion. The examiner opined that it is at least as likely as not that there is a nexus between the Veteran’s current hypertension and his service-connected anxiety disorder with PTSD, as well as his sleep apnea, which is now service-connected as a result of this decision. As the record now contains more evidence pertinent to the issue of nexus to service than it did in May 2011, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 3. GERD – New and Material Evidence The Veteran contends that he has GERD that is etiologically related to his active duty service. The Veteran was denied service connection for GERD in a May 2011 Board decision. Board decisions are generally final as of the date of their issuance. 38 C.F.R. § 20.1100 (2017). The basis for the May 2011 denial was a lack of evidence of nexus to service The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in May 2011, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has GERD as a result of active duty service. The evidence that was of record at the time of the May 2011 Board decision included the Veteran’s service treatment records, VA and private treatment records, and VA and private examination reports. Since the May 2011 rating decision, the Veteran has provided medical literature with regard to the possibility of a nexus between the Veteran’s GERD and his service-connected anxiety disorder with PTSD, as well as his hypertension and sleep apnea, which are now service-connected as a result of this decision. As the record now contains more evidence pertinent to the issue of nexus to service than it did in May 2011, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 4. Asthma – New and Material Evidence The Veteran contends that he has asthma that is etiologically related to his active duty service. The Veteran was denied service connection for asthma in a May 2011 Board decision. Board decisions are generally final as of the date of their issuance. 38 C.F.R. § 20.1100 (2017). The basis for the May 2011 denial was a lack of evidence of nexus to service The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in May 2011, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has asthma as a result of active duty service. The evidence that was of record at the time of the May 2011 Board decision included the Veteran’s service treatment records and VA and private treatment records. Since the May 2011 rating decision, the Veteran has provided medical literature with regard to the possibility of a nexus between his asthma and his GERD, service connection for which remains on appeal. As the record now contains more evidence pertinent to the issue of nexus to service than it did in May 2011, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 5. Tinnitus – Service Connection The Veteran contends that his tinnitus was caused by noise exposure during his active duty service. During his June 1974 separation examination, the Veteran did not report tinnitus. He refused a hearing examination because he found his hearing to be normal. The Veteran has submitted a January 1986 statement by his treatment provider, who reported that he had been treating the Veteran for tinnitus since August 1983 and that the Veteran had reported onset in 1972. The Veteran has continued to report tinnitus in subsequent treatment records. In a June 2016 statement, the Veteran ascribed his tinnitus to exposure to weapons fire during his military training. The Veteran was afforded a VA examination in August 2016. The examiner noted that the Veteran’s service treatment records did not mention tinnitus and, based on this, found that it was less likely than not that the Veteran’s tinnitus was related to acoustic trauma during military service. The examiner instead opined that the Veteran’s tinnitus was associated with his hearing loss, which is not service connected. As stated above, the Veteran has submitted an August 2018 private medical opinion. That examiner opined that it is more likely than not that the Veteran developed tinnitus during his active duty service. The examiner noted that tinnitus is more often a subjective diagnosis in which “if an individual states they have tinnitus then they are diagnosed with tinnitus,” that the Veteran has reported onset of tinnitus in 1972, and that exposure to loud noises such as those reported by the Veteran is a possible risk factor in the development of tinnitus. Of the two medical opinions of record, one is favorable to the Veteran’s claim and the other is not. The Board finds that the opinions have equally persuasive rationales and that the evidence is therefore in equipoise. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s tinnitus was due to in-service noise exposure. Accordingly, the Board finds that granting service connection for tinnitus is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). 6. Sleep Apnea – Service Connection The Veteran has a current diagnosis of sleep apnea, which he contends is etiologically related to his separately diagnosed and already service-connected anxiety disorder with PTSD. The Veteran has also raised other theories of service connection, such as a relationship to his already service-connected duodenal ulcer disease but, because this theory is dispositive, the Board will not address the Veteran’s other contentions. As stated above, the Veteran has submitted an August 2018 private medical opinion. That examiner opined that the Veteran’s sleep apnea is secondary to his anxiety disorder with PTSD. The examiner cited medical literature in support of the proposition that PTSD itself and the medications used to treat PTSD and anxiety are independent risk factors for the development of obstructive sleep apnea. The record contains no medical evidence to the contrary with regard to this theory of service connection. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s sleep apnea was caused, at least in part, by his service-connected anxiety disorder with PTSD. Accordingly, the Board finds that granting service connection for sleep apnea is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303 (a), 3.310. 7. Hypertension – Service Connection The Veteran has a current diagnosis of hypertension, which he contends is etiologically related to his separately diagnosed and already service-connected anxiety disorder with PTSD and the sleep apnea for which the Board has granted service connection above. The Veteran has also raised other theories of service connection, such as a relationship to his already service-connected duodenal ulcer disease but, because this theory is dispositive, the Board will not address the Veteran’s other contentions. As stated above, the Veteran has submitted an August 2018 private medical opinion. That examiner opined that the Veteran’s hypertension is secondary to his sleep apnea and his anxiety disorder with PTSD. The examiner cited medical literature in support of the proposition that both sleep apnea and PTSD have been shown to contribute to the development of hypertension and thoroughly explained the process by which causation would occur. The record contains no medical evidence to the contrary with regard to this theory of service connection. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s hypertension was caused, at least in part, by his service-connected anxiety disorder with PTSD and his service-connected sleep apnea. Accordingly, the Board finds that granting service connection for hypertension is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303 (a), 3.310. REASONS FOR REMAND 1. Service connection for GERD is remanded. The Veteran was afforded a VA examination in August 2016. The examiner opined that the Veteran’s service-connected duodenal ulcer disease did not cause or aggravate his GERD. However, the Veteran has submitted medical literature as to the possibility of an etiological relationship between GERD and sleep apnea, psychiatric medication, hypertension, and asthma. The Veteran’s sleep apnea, anxiety disorder with PTSD, and hypertension are all service-connected and service connection for asthma remains on appeal. For that reason, a remand for an additional opinion is necessary. 2. Service connection for asthma is remanded. Because the medical literature submitted by the Veteran suggests that GERD “may result in asthma by small aspirations of acid or through the vagovagal reflux arc,” the Veteran’s claim for service connection for asthma is inextricably intertwined with this remand and the Board cannot fairly proceed in adjudicating the asthma claim until the GERD claim has been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician to determine the etiology of the Veteran’s GERD. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current GERD had its origin in service or is related to the Veteran’s active service. b. Whether it is as least as likely as not that any current GERD was caused by the Veteran’s service-connected sleep apnea, anxiety disorder with PTSD, and hypertension, or his asthma. c. Whether it is as least as likely as not that any current GERD was aggravated beyond its natural progression by the Veteran’s service-connected sleep apnea, anxiety disorder with PTSD, and hypertension, or his asthma. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The medical literature submitted by the Veteran regarding a possible link between GERD and sleep apnea, psychiatric medication, hypertension, and asthma. b. The September 1982 private examiner’s opinion that the Veteran developed “organic gastric illness of a psychosomatic nature” as a result of stress during his active duty service. c. The January 2008 private treatment provider’s opinion that the Veteran’s psychiatric medication “can cause gastric irritation.” d. The March 2009 private examiner’s opinion that the Veteran’s gastrointestinal symptoms “are closely related to his anxiety.” The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an opinion by an appropriate clinician to determine the etiology of the Veteran’s asthma. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current asthma had its origin in service or is related to the Veteran’s active service, including by exposure to tear gas during his military training or to dirty blankets. b. Whether it is as least as likely as not that any current asthma was caused by the Veteran’s GERD. c. Whether it is as least as likely as not that any current asthma was aggravated beyond its natural progression by the Veteran’s GERD. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The medical literature submitted by the Veteran regarding a possible link between asthma and GERD. b. The Veteran’s October 2009 statement regarding the circumstances of his in-service gas exposure. c. The private examiner’s opinion that the Veteran developed “organic gastric illness of a psychosomatic nature” as a result of stress during his active duty service. c. The Veteran’s March 2010 statement ascribing his asthma to exposure to gas and dirty blankets. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. (Continued on the next page)   3. Readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel