Citation Nr: 18145840 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-23 516 DATE: October 30, 2018 ORDER New and material evidence having been received, the claim for service connection for hearing loss is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for tinnitus is reopened; the appeal is granted to this extent only. Service connection for erectile dysfunction is granted. A rating in excess of 10 percent for painful scars associated with residuals of bilateral inguinal repairs (scars) is denied. REMANDED The issue of entitlement to service connection for hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for a stomach disorder as secondary to service connected status-post inguinal hernia repairs is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service connected status-post inguinal hernia repairs, is remanded. FINDINGS OF FACT 1. An August 1995 rating decision denied the claims for service connection for hearing loss and tinnitus; the Veteran did not appeal the decision and no new and material evidence was received within one year of the denial. 2. The evidence added to the record after the expiration of the appeal period related to the August 1995 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for hearing loss and tinnitus. 2. Resolving all reasonable doubt in the Veteran’s favor, his current erectile dysfunction was aggravated by service-connected status post bilateral inguinal hernia repairs. 3. The Veteran’s painful scar, residual of bilateral inguinal repairs manifest as two painful surgical scars each measuring no more than 12 cm. CONCLUSIONS OF LAW 1. Subsequent to the final August 19951 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. Subsequent to the final December 2001 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). 4. The criteria for a rating in excess of 10 percent for scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7338-7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1974 to March 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2012, April 2012, and June 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2015, the Veteran requested a videoconference hearing before a Veterans Law Judge. In September 2018, he withdrew his hearing request. The issue of entitlement to service connection for major depressive disorder has been recharacterized as service connection of an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In September 2018, the Veteran submitted additional evidence in support of his appeals, namely a statement from his wife that described his in-service hernia injury. The Veteran has not waived initial agency of original jurisdiction (AOJ) consideration of this evidence. However, this evidence is not relevant to the claims decided herein and such a waiver was not necessary. See 38 C.F.R. § 20.1304 (2017). 1. Petitions to Reopen Claims for Service Connection for Hearing Loss and Tinnitus Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final “only after the period for appeal has run,” and “[a]ny interim submissions before finality must be considered by the VA as part of the original claim.” Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final.” King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question “as new claims”). That is, when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). The claims of entitlement to service connection for hearing loss and tinnitus were originally denied in an August 1995 rating decision on the basis that the service medical records were negative for treatment of hearing loss during the Veteran’s service and there was no evidence that tinnitus manifested to a compensable degree within one year following service separation. The evidence considered in this rating decision included the Veteran’s service treatment records, a hearing transcript, a February 1994 VA examination report and various private treatment records. The Veteran did not appeal that decision or submit new and material evidence within one year of the denial, and so, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claims for service connection for hearing loss and tinnitus was received prior to the expiration of the appeal period stemming from the August 1995 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). In connection with the Veteran’s current petitions to reopen the claim for service connection for hearing loss and tinnitus, a February 2012 VA audiology consultation report that purportedly corroborated the Veteran’s account of in-service noise exposure. This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claims for service connection, namely evidence suggesting a nexus between the condition and service. The petitions to reopen the claim of entitlement to service connection for hearing loss and tinnitus are granted. 2. Erectile Dysfunction The Veteran seeks service connection for erectile dysfunction, which he contends is secondary to his service-connected status post bilateral inguinal hernia repairs. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Here, it is undisputed that the Veteran has a current diagnosis of erectile dysfunction. See, e.g., VA examination (July 2015). Additionally, VA and private examiners have opined that the Veteran’s service-connected status post bilateral inguinal hernia repairs are productive of pain that aggravates his erectile dysfunction. See Id. and Dr. S. (September 30, 2012). The July 2015 VA examiner explained that while it is not possible to ascertain the precise etiology or pre-aggravation baseline of the Veteran’s erectile dysfunction, his erectile dysfunction has been aggravated beyond its natural progression by his service-connected hernia repair residuals, namely pain. None of the evidence of record opposes the favorable private and VA medical opinions. Accordingly, as the evidence shows that the current erectile dysfunction is proximately due to or the result of the service-connected status post bilateral inguinal hernia repairs, service connection for erectile dysfunction is warranted. 3. Scars The Veteran seeks a rating in excess of 10 percent for two surgical scars associated with his service-connected bilateral inguinal hernia repairs. These scars are rated by analogy under the diagnostic codes for an inguinal hernia and an unstable or painful scar. Under Diagnostic Code 7805, scars and other effects of scars are to be evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. See 38 C.F.R. § 4.118. Here, Diagnostic Code 7800 is not applicable as it pertains to scars of the head, face, or neck. Diagnostic Codes 7801 and 7802 are not applicable as they warrant compensable ratings for scars measuring at least 6 square inches and the Veteran’s surgical scars only measure 12 cm. See, e.g., VA examination (July 2015). Diagnostic Code 7804 is applicable as it contemplates painful and unstable scars: providing a 10 percent rating for one or two unstable or painful scars, a 20 percent for three or four unstable or painful scars, and a 30 percent rating for five or more unstable or painful scars. See 38 C.F.R. § 4.118. In this case, the evidence shows that a rating in excess of 10 percent rating is not warranted, as the Veteran has two painful surgical scars, each measuring no more than 12 cm. See, e.g., VA examination (July 2015). As the Veteran does not contend and the evidence does not suggest that he has more than two scars, the Board finds that 20 percent rating, the next higher rating, is not warranted. REASONS FOR REMAND 1. Hearing Loss and Tinnitus The Veteran seeks service connection for hearing loss and tinnitus, which he relates to exposure to loud noise while shooting and operating near aircraft during boot camp. See VA treatment record (February 7, 2012) and Statement (June 18, 2012). The Veteran was medically discharged from service for a hernia after four weeks of recruit training. The evidence does not include a Report of Medical Evaluation at the time of separation. In February 2012, the Veteran was referred for VA audiology consultation following reports of longstanding tinnitus and hearing loss. The examining audiologist acknowledged that the Veteran was exposed to loud noise, particularly near aircraft and while discharging firearms in basic training; and contemporaneous pure tone threshold testing indicates that the Veteran has a current hearing loss disability. See VA treatment record (February 7, 2012); 38 C.F.R. § 3.385. As the audiologist did not render an opinion as to whether the current tinnitus and hearing loss are related to the Veteran’s in-service noise exposure, VA examination to obtain such an etiology opinion is necessary. 2. A Stomach Disorder The Veteran seeks service connection for a stomach disorder, which he relates to pain medication required for his service-connected hernia repair residuals. Treatment records prior to and during the pendency of the appeal show that the Veteran has reported symptoms such as stomach pain after taking pain medication for his service-connected hernia repair residuals. See VA examination (December 2009); VA treatment record (December 10, 2012) (showing that the Veteran requested a different pain medication after experiencing frequent upset stomach while taking pain medication thrice daily). In July 2015, a VA examiner opined that the Veteran’s stomach symptoms, diagnosed as gastroesophageal reflux disease (GERD), are not caused or aggravated by the service-connected hernia residuals. Significantly, however, the examiner did not address whether the Veteran’s pain medication causes or aggravates his current stomach disorder. Accordingly, an addendum opinion addressing the Veteran’s contentions is required. 3. An Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder, which he relates to his service-connected hernia residuals. The Veteran has current diagnoses of adjustment disorder. A September 2012 opinion from Dr. A. S., a private physician, diagnosed the Veteran with an adjustment disorder and opined that this diagnosis is associated with his military service. However, no rationale was provided for this opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the record suggests that the Veteran may have an acquired psychiatric disorder related to his service-connected status-post bilateral inguinal hernia repairs, and etiology opinion is needed. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disabilities. Finally, given the time that will elapse on remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from June 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his current hearing loss and tinnitus. The examiner must opine whether such are at least as likely as not related to an in-service injury, event, or disease, including exposure to loud noise near aircraft and while using firearms while in recruit training. In forming an opinion, the examiner is to address the February 2012 VA audiology consultation note. Additionally, the examiner is advised that the Veteran is competent to report symptoms of hearing loss and tinnitus and that the absence of audiological testing upon separation from service cannot weight against the Veteran’s claim. 3. After completing the above listed development and obtaining as much outstanding evidence as is available, then return the claims file, to include a copy of this remand, to the July 2015 VA examiner for an addendum opinion. If the examiner who drafted the July 2015 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to answer the following questions: (A) With regards to the diagnosed stomach disorder, including GERD, the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder was caused by his service connected status-post bilateral inguinal hernia repairs? The examiner should specifically address the Veteran’s contention that the pain medication he took for his service connected status-post bilateral inguinal hernia caused his stomach disorder. (B) With regards to the diagnosed stomach disorder, including GERD, the examiner should offer an opinion as to whether it was at least as likely as not (a 50 percent or higher probability) that such disorder was aggravated by his service connected status-post bilateral inguinal hernia repairs? The examiner should specifically address the Veteran’s contention that the pain medication he took for his service connected status-post bilateral inguinal hernia aggravated his stomach disorder. The examiner should consider all of the evidence of record, including the Veteran’s lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current acquired psychiatric disorder, to include adjustment disorder. The examiner is asked to furnish an opinion with respect to the following questions: (A) Identify all current acquired psychiatric disorder(s) that have been present at any time since March 2010. (B) For each currently diagnosed acquired psychiatric disorder, is it at least as likely as not (a 50 percent or higher probability) that such disorder had on its onset during or was otherwise related to his service? (C) For each currently diagnosed acquired psychiatric disorder, is it was at least as likely as not (a 50 percent or higher probability) that such disorder was caused by his service connected status-post bilateral inguinal hernia repairs? (D) For each currently diagnosed acquired psychiatric disorder, is it was at least as likely as not (a 50 percent or higher probability) that such disorder was aggravated by his service connected status-post bilateral inguinal hernia repairs? The examiner should consider all of the evidence of record, including the Veteran’s lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel