Citation Nr: 18149406 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-24 919 DATE: November 9, 2018 ORDER New and material evidence has been submitted, and the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence has been submitted, and the claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is reopened. Service connection for a bilateral hearing loss disability is granted. REMANDED Service connection for a sleep disorder, to include sleep apnea and hypersomnia, to include as due to service-connected disabilities, is remanded. Service connection for GERD, to include as due to service-connected disabilities, is remanded. Service connection for erectile dysfunction, to include as due to service-connected disabilities, is remanded. Service connection for a skin disability, to include basal cell carcinoma and chloracne, is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a March 2013 rating decision, the regional office (RO) denied the Veteran’s service-connection claim for bilateral hearing loss. The Veteran did not appeal, nor did he submit new and material evidence within one year of this determination. 2. Since the March 2013 rating decision denying the Veteran’s service-connection claim for bilateral hearing loss, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. 3. In a June 2013 rating decision, the RO denied the Veteran’s service-connection claim for GERD. The Veteran did not appeal, nor did he submit new and material evidence within one year of this determination. 4. Since the June 2013 rating decision denying the Veteran’s service-connection claim for GERD, new evidence has been associated with the claims file that bears on the previously unestablished nexus element, raising a reasonable possibility of substantiating the claim. 5. The evidence is at the very least in equipoise as to whether the Veteran’s bilateral hearing loss disability is related to military service. CONCLUSIONS OF LAW 1. The RO’s March 2013 denial of the claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104; 20.302, 20.1103 (2017). 2. As additional evidence received since the RO’s March 2013 denial is new and material, the criteria for reopening the claim for service connection for bilateral hearing loss are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The RO’s June 2013 denial of the claim for service connection for GERD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104; 20.302, 20.1103 (2017). 4. As additional evidence received since the RO’s June 2013 denial is new and material, the criteria for reopening the claim for service connection for GERD are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to December 1975. Initially, the Board notes that the Veteran’s claim for service connection for basal cell carcinoma was previously denied in a March 2013 rating decision. Subsequent to such decision, additional evidence, to include a lay statement submitted by the Veteran in January 2014, was associated with the record. Pursuant to 38 C.F.R. § 3.156(b), 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. Therefore, as such evidence is new and material as to the claim for service connection for basal cell carcinoma, the Board finds that such claim has been pending since April 2012 and is properly characterized as a de novo claim as indicated herein. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For applications to reopen filed after August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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, 117 (2010). The RO denied the Veteran’s service-connection claims for bilateral hearing loss in a March 2013 rating decision. The Veteran did not submit any new and material evidence or a notice of disagreement within a year of that decision. The RO denied the Veteran’s service-connection claim for GERD in a June 2013 rating decision. The Veteran did not submit any new and material evidence or a notice of disagreement within a year of that decision. Thus, the March 2013 and June 2013 rating decisions became final as to the claims of service connection for bilateral hearing loss and GERD. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. Evidence received since the March 2013 rating decision denying service connection for bilateral hearing loss includes lay statements from the Veteran regarding the onset of his hearing loss disability, as well as statements from the Veteran’s attorney. See September 2014 Statement in Support of Claim; March 2018 Correspondence. Such additional evidence is new, material, relates to the open question of nexus, and therefore serves to reopen the claim. Evidence received since the June 2013 rating decision denying service connection for GERD includes the Veteran’s assertion that his GERD is secondary to his service-connected PTSD, and medical treatise evidence showing a potential relationship between PTSD and gastrointestinal disabilities. See March 2018 Correspondence. Such additional evidence relates to the open question of nexus, and as discussed below, triggers VA’s duty to assist. The evidence is new, material, and serves to reopen the claim. Service Connection Service connection may be granted 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(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a bilateral hearing loss disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). There is no question that the Veteran has a current hearing loss disability for VA purposes under the provisions of 38 C.F.R. § 3.385. See November 2012 VA examination report. The Veteran served in the Republic of Vietnam and has stated that in the course of his duties, he fired hundreds of rounds of concussion grenades and mortars on a nightly basis. See September 2014 Statement in Support of Claim. Indeed, the RO has conceded that he was exposed to hazardous noise exposure. Therefore, the remaining inquiry is whether the Veteran’s current bilateral hearing loss is related to his in-service noise exposure. One medical opinion has been obtained in this regard. The November 2012 VA examiner could not make a finding as to whether hearing loss was at least as likely as not incurred in service without resort to speculation. The rationale was that though the Veteran was exposed to loud noise in service and reported no other significant noise trauma post-service, given that he had normal hearing results at separation, it would be pure speculation to say whether the hearing loss occurred later due to previous noise exposure. The examiner further remarked that although the type, configuration, and severity of the hearing loss could be consistent with noise exposure, the etiology was unknown. The examiner did, however, find that tinnitus was more likely than not related to the Veteran’s conceded noise exposure in service, based on the rationale that tinnitus is highly associated with noise exposure, and the nature of the Veteran’s noise exposure in service was mortars and weaponry. Given that (1) the Veteran had in-service noise exposure from mortars and weaponry; (2) the Veteran has credibly stipulated that his hearing loss began in and has persisted since service; (3) the Veteran has not experienced post-service loud noise exposure; (4) the November 2012 VA examiner indicated that the type, configuration and severity of the Veteran’s hearing loss would be consistent with noise exposure; (5) the VA examiner could not provide an opinion either for or against the claim; and (6) that VA has already determined that the Veteran’s tinnitus was more likely than not due to hazardous noise in service, the Board will resolve all doubt in the Veteran’s favor and finds that the criteria for service connection for bilateral hearing loss have been met based on in-service incurrence. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board initially notes that in a February 2018 brief, the Veteran’s attorney cites to several Internet articles and medical treatises. On remand, the AOJ should request that the attorney provide copies of the articles or treatises he wishes considered by VA, as web links frequently expire, and information contained on Internet pages is not static. 1. Entitlement to service connection for a sleep disorder, to include sleep apnea and hypersomnia, to include as due to service-connected disabilities. The Board notes that the Veteran has claimed service connection for both sleep apnea and a sleep disorder. See November 2014 Statement in Support of Claim. Evidence in the record shows that the Veteran has been diagnosed with sleep apnea and hypersomnia; the Board will therefore broadly construe the issues of service connection for the claimed conditions as a claim for service connection for a sleep disorder, to include sleep apnea and hypersomnia. Clemons v. Shinseki, 3 Vet. App. 1 (2009). The Veteran contends that he has sleep apnea that is either related to a head injury sustained in service, see August 2015 Correspondence, or secondary to his service-connected PTSD. See February 2018 Correspondence. The Veteran’s attorney has submitted medical treatise evidence suggesting a relationship between PTSD and sleep disorders. Given the foregoing, the Board finds that the Veteran should undergo a VA sleep disorders examination. 2. Entitlement to service connection for GERD, to include as due to service-connected disabilities. The Veteran underwent a VA examination for his claimed GERD in May 2013. The examiner opined that there was no association between GERD and PTSD, but did not offer an opinion as to direct service connection, nor address the issue of whether PTSD aggravated GERD. Accordingly, the Board will remand for an addendum opinion. In opining as to direct service connection, the examiner should comment on the service treatment records showing that the Veteran experienced symptoms of burning stomach in January 1975 for seven days. 3. Entitlement to service connection for erectile dysfunction, to include as due to service-connected disabilities. Regarding erectile dysfunction, the Veteran and his attorney have asserted that it is related to his service-connected PTSD, and the Veteran’s attorney has submitted medical treatise evidence to that end. In a July 2015 VA medical opinion, an examiner opined that erectile dysfunction was less likely than not related to service-connected PTSD, based on the rationale that the Veteran did not take any medication for his PTSD, and that age could be the source of the condition. That rationale seems to imply that erectile dysfunction could only stem from medication taken for PTSD, rather than the symptoms and psychological effects of PTSD itself, as has been asserted by the Veteran and his attorney, and the medical treatise evidence submitted in support. Accordingly, the Board will remand for an addendum opinion. 4. Entitlement to service connection for a skin disability, to include basal cell carcinoma and chloracne. The record shows that the Veteran first received a diagnosis of basal cell carcinoma in 1983. Since that time, he has had recurrent shave biopsies to remove cancerous growths from his nose and forehead. He underwent a VA skin examination in June 2012. The examiner noted that the Veteran was diagnosed with basal cell carcinoma in 1983. The VA examiner did not note the presence of chloracne. In a July 2012 medical opinion, an examiner opined that basal cell carcinoma was less likely than not incurred in service. The rationale was that there was no mention of skin complaints pertaining to skin cancer or excessive sun exposure in service, and without such documentation the examiner was unable to make an objective association between service and the Veteran’s current skin disability. Finally, the examiner noted that basal cell carcinoma was often correlated with excessive sun exposure, and that the Veteran was only in service for four years, which the examiner noted, “pales in comparison to the amount of sun exposure time from his discharge in 1973 onwards.” A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era also will be presumed to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). In pertinent part, chloracne or other acneform disease consistent with chloracne, are among the diseases that are associated with herbicide exposure for purposes of this presumption. 38 C.F.R. § 3.309(e). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. There is no question that the Veteran had service in-county in Vietnam, and is therefore presumed to have been exposed to herbicide agents. That stated, skin disorders such as basal cell carcinoma are not disabilities for which presumptive service connection would be available under 38 C.F.R. § 3.309(e). Nonetheless, the June 2012 VA examiner did not address whether the Veteran’s skin disability may be related to in-service herbicide exposure on a direct basis. Accordingly, the Board finds that a new VA examination is necessary to address the relationship between any of the Veteran’s skin disabilities and his in-service exposure to herbicide agents, as well as excessive sun exposure. 5. Entitlement to a rating in excess of 50 percent for PTSD. The most recent VA examination addressing the current nature and severity of the Veteran’s PTSD was in June 2015. In May 2017, the Veteran’s representative submitted a mental impairment questionnaire that was completed by Dr. J.D. in May 2017. Though the Veteran’s representative contended that the findings of the May 2017 questionnaire warranted the assignment of a 100 percent rating, the questionnaire actually notes that the Veteran’s PTSD symptoms had improved. The examiner also noted that PTSD symptoms included difficulty thinking or concentrating; recurrent and intrusive recollections of a traumatic experience; easy distractibility; and sleep disturbance, symptoms which are commensurate with the 50 percent rating currently assigned. However, given the passage of time since the last VA examination in June 2015, as well as the assertion by the Veteran’s representative in February 2018 that the Veteran’s PTSD symptoms have worsened, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the claim for a higher rating for PTSD. 6. Entitlement to a TDIU. The Board will defer appellate consideration of the issue of entitlement to a TDIU pending completion of the actions directed below. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify, submit or authorize VA to obtain any VA or private treatment records not already on file that he believes are pertinent to his appeal. 2. Contact the Veteran and the Veteran’s attorney and request that they provide actual copies of each Internet article and medical treatise referenced in the February 9, 2018 Brief 3. After all Internet articles and treatise evidence is submitted and associated with the record, schedule the Veteran for a VA examination to assess the etiology of the Veteran’s sleep disorders. The examiner should take a history from the Veteran as to the progression of his sleep symptoms. Upon review of the Veteran’s claims file, the reviewing physician should provide responses to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s sleep disorders had their onset during military service, or are otherwise related to military service, to include the claimed in-service head injury? (b.) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s sleep disorders have been caused or aggravated beyond their natural progression by the Veteran’s service-connected PTSD or any other service-connected disabilities? In so opining, the examiner should address the medical treatise evidence submitted by the Veteran and his attorney. 4. Obtain an addendum medical opinion addressing the etiology of the Veteran’s GERD. Upon review of the Veteran’s claims file, the reviewing physician should provide responses to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s GERD had its onset in military service, or is otherwise related to military service, to include the January 1975 reports of a burning stomach that lasted for seven days? (b.) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s GERD has been caused or aggravated beyond its natural progression by a service-connected disability, to include PTSD? In so opining, the examiner should address the medical treatise evidence submitted by the Veteran and his attorney showing a potential association between PTSD and gastrointestinal issues. 5. Obtain an addendum medical opinion addressing the etiology of the Veteran’s erectile dysfunction. Upon review of the Veteran’s claims file, the reviewing physician should provide responses to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction had its onset in military service, or is otherwise related to military service? (b.) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction has been caused or aggravated beyond its natural progression by a service-connected disability, to include PTSD and/or any medication taken therefor? In so opining, the examiner should address the medical treatise evidence of record submitted by the Veteran and his attorney suggesting an association between PTSD and sexual dysfunction. 6. Schedule the Veteran for a VA examination to assess the Veteran’s skin disabilities, to include basal cell carcinoma and chloracne. The examiner should take a history from the Veteran as to the progression of skin symptoms. After review of the record, interview and examination of the Veteran, the examiner should provide responses to the following: (a.) Identify all skin disabilities. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a skin disability, to include basal cell carcinoma or chloracne, that is related to his presumed in-service exposure to herbicide agents while serving in Vietnam and/or excessive sun exposure during service as described by the Veteran? A negative nexus opinion cannot be based exclusively on the fact that the Veteran’s disability(ies) are not on VA’s list of disabilities presumed to be related to herbicide agents. This is because service connection can be established for diseases not on VA’s presumptive list, should the evidence indicate a direct relationship exists between this Veteran’s disability and his exposure. All opinions should be supported by a complete rationale. 7. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD. The entire record must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected PTSD, as well as the impact that such has on his social and occupational functioning. 8. Then, readjudicate the issues on appeal, to include entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel