Citation Nr: 18147943 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-33 644 DATE: November 6, 2018 ORDER New and material evidence has been received sufficient to reopen a claim of service connection for gastroenteritis and the petition to reopen is granted. New and material evidence has been received sufficient to reopen a claim of service connection for a gastroesophageal reflux disease (GERD) and the petition to reopen is granted. New and material evidence has been received sufficient to reopen a claim of service connection for a headache disorder and the petition to reopen is granted. Entitlement to service connection for a hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a headache disorder is granted. REMANDED Entitlement to service connection for gastroenteritis is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. An April 2004 rating decision denied the Veteran's claims of service connection for headaches, GERD, and gastroenteritis. The Veteran received notice of this decision and did not appeal or file new and material evidence within one year. 2. The April 2004 rating decision is final. 3. Evidence added to the file since the April 2004 rating decisions is new and material and raises a reasonable possibility of allowing the claims of service connection for headaches, GERD, and gastroenteritis. 4. The Veteran does not have a bilateral hearing loss disability for VA compensation purposes. 5. With resolution of the doubt in favor of the Veteran, his tinnitus began during service. 6. With resolution of the doubt in favor of the Veteran, his headaches began during service. CONCLUSIONS OF LAW 1. The April 2004 rating decision denying service connection for gastroenteritis. GERD, and headaches is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. As new and material evidence has been submitted, the petition to reopen a finally denied claim of service connection for a headache disorder is granted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. As new and material evidence has been submitted, the petition to reopen a finally denied claim of service connection for GERD is granted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. As new and material evidence has been submitted, the petition to reopen a finally denied claim of service connection for gastroenteritis is granted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for entitlement to service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 6. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1984 to May 2004. 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for headaches 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for GERD 3. Whether new and material evidence has been received sufficient to reopen a claim of service connection for gastroenteritis A final rating decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. §§ 5108, 7105. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 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 Veteran’s claims of service connection for gastroenteritis, GERD, and headaches were denied in an April 2004 rating decision because no chronic disorders were noted. The Veteran did not file a timely appeal, nor did he submit new and material evidence within one year of the decision. Therefore, it is final. 38 U.S.C. § 7105. Since the April 2004 rating decision, the Veteran submitted treatment records showing ongoing treatment for headaches and GERD and statements from his physicians in which they opined that his headaches and gastrointestinal syndrome were related to his service. The Board finds this evidence to be new and material, sufficient to reopen his claims. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for certain chronic diseases, including sensorineural hearing loss, may also be established based upon a legal “presumption,” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for the chronic diseases enumerated in 38 U.S.C. §§ 1101, 1112 may also be shown by lay evidence alone if the evidence shows a continuity of symptomatology for that chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b). VA is to resolve any reasonable doubt in the Veteran’s favor. 38 C.F.R. § 3.102. 4. Entitlement to service connection for a hearing loss disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Service treatment records show normal hearing at entrance and separation with no complaints of hearing loss. On his report of medical history, the Veteran denied hearing loss or ringing in ears. At a January 2011 VA examination, puretone audiometry test results were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 10 15 20 25 Left 25 25 25 25 25 The Veteran’s speech recognition scores were 94 percent in the right ear and 94 percent in the left ear. The Veteran was diagnosed with normal hearing bilaterally. The examiner opined that the Veteran’s hearing loss is less likely than not caused by or a result of an in-service event. As a rationale, the examiner stated that the Veteran did not meet the criteria for a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385. Service connection may not be granted without evidence of a current disorder. Because the Veteran does not have hearing loss under 38 C.F.R. § 3.385 for VA benefits purposes, his claim fails the first step of the Shedden test, and the Board cannot grant service connection for this disability. 5. Entitlement to service connection for tinnitus Regarding the claim for tinnitus, the Board finds that with resolution of the doubt in favor of the Veteran, service connection is warranted. The Veteran reported that he was exposed to engine room noise and gunfire during service and that he began to experience tinnitus during service. The Veteran’s testimony is competent as tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s testimony is also credible because his statements are supported by his service personnel records showing 20 years of noise exposure aboard ships while in the Navy. Therefore, the claim of service connection for tinnitus is granted. 6. Entitlement to service connection for a headache disorder Regarding the claim for headaches, the Board finds that with resolution of the doubt in favor of the Veteran, service connection is warranted. At his discharge examination in March 2004, the Veteran reported that “from time to time [he has] headache.” Post service, the Veteran contended that he continued to experience headaches. The Veteran’s testimony is competent and credible and his headaches are capable of lay observation and supported by the separation examination and post-service treatment records. See Charles v. Principi, 16 Vet. App. 370 (2002). The sole contrary evidence, a VA examination report, fails to provide an adequate rationale for the negative nexus opinion offered. Therefore, the claim of service connection for headaches is granted. REASONS FOR REMAND 1. Entitlement to service connection for gastroenteritis is remanded. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Remand is necessary to obtain a nexus opinion regarding the Veteran's gastrointestinal disorders. Service treatment records show the Veteran complained of gastrointestinal pain during service and was diagnosed with viral gastroenteritis. The Veteran's VA examinations show that he sought treatment in 2005, shortly after discharge from service, for GERD and was prescribed omeprazole. However, the Veteran's treatment records from 2005 have not been associated with the claims file. As they are relevant to his claim, remand is necessary to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding relevant VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA gastrointestinal disorders examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current diagnoses of the digestive system; GERD and gastroenteritis must be specifically addressed. For each diagnosed condition, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) related to military service. (Continued on the next page)   A full and complete rationale for all opinions expressed is required. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Siesser, Counsel