Citation Nr: 18149430 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-47 244 DATE: November 9, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a left elbow disability is denied. The petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. The petition to reopen a claim of entitlement to service connection for bronchitis is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for hemorrhoids is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for bronchitis, to include as a result of asbestos exposure, is remanded. FINDINGS OF FACT 1. In a September 2002 rating decision, the RO denied service connection for a left elbow disability. This decision is final and has not been subject to revision on the basis of clear and unmistakable error (CUE). 2. Evidence received since the last final September 2002 rating decision is cumulative or redundant of the evidence previously of record, and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for a left elbow disability. 3. A July 1991 rating decision last denied service connection for bilateral hearing loss; evidence pertaining to the Veteran’s bilateral hearing loss since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 4. A January 2004 rating decision last denied service connection for bronchitis; evidence pertaining to the Veteran’s bronchitis since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 5. The Veteran’s bilateral hearing loss did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 6. The Veteran’s tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 7. Hypertension did not manifest in service or within one year of service separation, and is not otherwise etiologically related to service. 8. The Veteran’s hemorrhoids and GERD were not shown in service. The competent and credible evidence fails to establish an etiological relationship between the Veteran’s hemorrhoids or GERD and his active service. CONCLUSIONS OF LAW 1. The September 2002 rating decision that denied the Veteran’s claim for service connection for a left elbow disability is final. 38 U.S.C. § 7105, 38 C.F.R. §§ 3.160(d), 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a left elbow disability has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The July 1991 rating decision which denied the Veteran’s claim for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 4. The evidence received since the last final July 1991 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 5. The January 2004 rating decision which denied the Veteran’s claim for bronchitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 6. The evidence received since the last final January 2004 rating decision is new and material, and the claim for service connection for bronchitis is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 7. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. 8. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 9. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 10. The criteria for service connection for hemorrhoids are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 11. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to February 1991. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left elbow disability. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’d, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted “is a legal nullity.” Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). The Board finds that new and material evidence sufficient to warrant reopening the Veteran’s service connection claim for a left elbow disability has not been submitted. In a September 2002 rating decision, the RO last denied service connection for a left elbow disability. This decision has not been modified by a claim for revision based on clear and unmistakable error. Therefore, the September 2002 RO decision is final. 38 U.S.C. § 7105 (2012), 38 C.F.R. §§ 3.160(d), 20.1100 (2018). The evidence of record in September 2002 consisted of the Veteran’s service treatment records, post service treatment records, and statements from the Veteran. The Veteran’s claim was denied essentially because the RO found that the evidence did not show that his disability had its onset in service or was etiologically related to service or to his service-connected back disability. The Board notes that since the September 2002 RO decision, additional treatment records and lay statements have been associated with the claims file. While new, these records are not material in that they do not demonstrate a nexus between the Veteran’s left elbow disability and service. Additionally, the evidence does not show a relationship with the Veteran’s service-connected back disability. Rather, the evidence merely reflects a diagnosis of this issue, something already acknowledged and considered in the prior final RO decision. The Veteran additionally submitted statements reiterating his already presented arguments. The Board finds that this new evidence submitted is not material, in that it does not relate to an unestablished fact necessary to substantiate the claim. The new evidence, like the old evidence, fails to establish a nexus between the Veteran’s diagnosed left elbow disability and service, or his service-connected back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board has reviewed hundreds of pages of medical evidence and statements submitted by the Veteran in support of his claim. His assertions are cumulative of the assertions and lay statements previously considered in the earlier final RO decision addressing the claim for service connection for a left elbow disability. The submissions, while new, are simply not material. The evidence received since 2002 is not new and material, and the requirements have not been met to reopen the claim for service connection. The additional evidence is redundant in nature and does not raise a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection is denied. See 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been submitted to reopen claims of entitlement to service connection for bilateral hearing loss and bronchitis. At the time of the last final denial of the Veteran’s claim for service connection for bilateral hearing loss, in July 1991, evidence of record included service treatment records and VA examinations. At the time of the last final denial of the Veteran’s claim for service connection for bronchitis, in January 2004, evidence of record included private treatment records. Evidence associated with the claims file since the previous July 1991 and January 2004 denials includes VA treatment records, private treatment records and statement reflecting continued issues with his claimed disabilities. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for bilateral hearing loss and bronchitis are reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 3. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran asserts that he developed hearing loss and tinnitus as a result of his experiences during active service. Indeed, the Veteran asserts he was exposed to noise from diesel engines and artillery. See August 2015 VA examination. The Veteran also asserts he has had ringing in his ears for the past few years. See August 2015 VA examination. The Board has reviewed all the relevant evidence of record, and finds that the preponderance of the evidence weighs against the Veteran’s claims. The Board concedes that the first Shedden element of a current disability has been met, as the Veteran has current diagnosed bilateral hearing loss sufficient to meet VA disability standards, as well as a current diagnosis of tinnitus. See August 2015 VA examination. The Board also concedes that the Veteran had in-service noise exposure, meeting the second Shedden element. Therefore, the remaining pertinent element to be discussed is that of a nexus between the Veteran’s current tinnitus and hearing loss, and service. The Board has reviewed the Veteran’s extensive service treatment records (STRs). The Veteran’s November 1990 separation examination reflects normal hearing. Indeed, the Veteran’s STRs contain no complaints of hearing loss or tinnitus. In addition, the Veteran’s November 1990 separation report of medical history reflects that the Veteran reported that he did not have, nor had he had, hearing loss or ear trouble. The first post-service evidence of complaint, diagnosis or treatment of bilateral hearing loss and tinnitus is in a March 1991 claim for hearing loss. However, in a June 1991 VA audiological examination, testing results at that time revealed normal findings. Tinnitus was not noted. An August 2015 VA audiological examination report shows that the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The Veteran reported difficulty hearing in the presence of background noise. After a physical examination and review of the claims file, the VA examiner opined that it was less likely than not that the Veteran’s hearing loss or tinnitus is related to service. The examiner noted that the Veteran had normal ranges of hearing on his entrance exam, periodic exam, and retirement exam. She stated that a significant threshold shift did not exist. Therefore, she opined that it was less likely as not that the Veteran’s hearing loss was caused by or related to his noise exposure in service. Regarding tinnitus, the Veteran reported that his tinnitus began over the past couple of years. The examiner opined that it was less likely than not that tinnitus was caused by or a result of military noise exposure. The VA examiner noted the Veteran’s reports of noise exposure working as a field medic. However, she stated that there was no hearing loss documented on the entrance examination or on periodic examinations throughout service. She reiterated that there were no significant threshold changes between examinations. The VA examiner noted that in the absence of an objectively verifiable noise injury (such as hearing loss or significant threshold changes in service), the claimed association between tinnitus and noise exposure does not exist. After reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had onset of bilateral hearing loss or tinnitus either during service or within the first year after separation from service. The Board finds it significant that the Veteran’s separation examination shows he had a normal audiological examination, and he specifically reported having no issues with his hearing on separation from service. Additionally, an audiological examination in June 1991 reflected normal hearing thresholds and no reports of tinnitus. Furthermore, it is by the Veteran’s own admission that his tinnitus started well after separation from service; at the August 2015 VA examination, the Veteran stated his tinnitus had its onset over the past couple of years. The only medical opinion to address the medical relationship, if any, between the Veteran’s bilateral hearing loss and tinnitus and active service weighs against the claim. The August 2015 VA examiner’s opinions considered all the evidence of record, to include the Veteran’s assertion that his hearing loss and tinnitus were caused by noise exposure during active service, and opined that the Veteran’s bilateral hearing loss and tinnitus were not related to service. The Board finds that these opinions constitute probative evidence on the medical nexus question, based on a review of the Veteran’s documented medical history, assertions, and physical examination. The opinions provided clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran’s lay opinions regarding the etiology of his hearing loss and tinnitus. Prejean v. West, 13 Vet. App. 444 (2000). Additionally, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claims for service connection for bilateral hearing loss or tinnitus. VA adjudicators are not free to ignore or disregard the medical conclusions of a physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran can testify to that which he is competent to observe, such as symptoms denoting loss of hearing and tinnitus, but he is not competent to provide a medical diagnosis of hearing loss or to relate any symptoms of hearing loss to noise exposure in service. The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran attributes bilateral hearing loss and tinnitus to service, it does not necessarily follow that there is a relationship between current bilateral hearing loss or tinnitus and service. The Board finds that the contemporaneous in-service evidence of record, as well as audiological testing considered with the August 2015 VA examination, is of more probative and persuasive value than the Veteran’s assertions. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that bilateral hearing loss and tinnitus are related to active service. As the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, the claims must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for hypertension. Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and certain disabilities become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.307, 3.309. However, the Veteran’s treatment records do not reflect a diagnosis of or treatment for hypertension for many years following separation from service. Thus, this presumption is not available to the Veteran. Id. The Board also considers the theory of entitlement to service connection for hypertension on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed disorder and any other incident of active service, as will be discussed below. Review of the record reflects that the Veteran’s service treatment records do not show treatment for hypertension during his active duty service. His blood pressure reading at his November 1990 separation examination was 120/80. Next, and more importantly, post-service evidence does not reflect complaints or treatment associated with hypertension for many years after service discharge. Such tends to negate a finding for service connection based on direct service incurrence. The Veteran’s reported history of continued symptomatology since active service has also been considered but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant’s uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, records do not reflect problems related to the Veteran’s hypertension for many years following separation from service. Post service treatment records first reflect treatment for hypertension around 2004. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed conditions, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This long period without problems weighs against the claim. The value of the Veteran’s assertions is additionally diminished, given that there is clinical evidence indicating that his heart and blood pressure were normal at the time he left service. They were additionally normal in a VA examination completed in July 1991. Accordingly, the Board finds the Veteran’s statements asserting continuity of symptomatology of hypertension since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran’s statements, it may consider whether self-interest may be a factor in making such statements). Continuity of symptomatology has not here been established, either through the competent evidence or through the statements submitted by the Veteran. Having determined that the Veteran’s alleged clinical history regarding onset and continuity of hypertension is not consistent with the evidence, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. Here, however, the service and post-service evidence provide particularly negative evidence against this claim. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his hypertension. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. 5. Entitlement to service connection for hemorrhoids and GERD. The Veteran asserts that he has hemorrhoids and GERD related to service. As an initial matter, the Board notes that the service treatment records reflect no complaints of, treatment for, or a diagnosis related to hemorrhoids or GERD. Next, and more importantly, post-service evidence does not reflect complaints of problems associated with hemorrhoids or GERD for many years following separation from service. The evidence clearly shows that the Veteran’s claimed disabilities did not develop until many years following separation from service. The Board has also considered the Veteran’s statements regarding continuity of symptoms since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.309(a). As the Veteran’s hemorrhoids and GERD are not listed under § 3.309(a), entitlement to service connection based on a theory of continuity of symptomatology is simply not applicable in the present case. The Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The service and post-service evidence provide particularly negative evidence against these claims. The Board has closely reviewed the medical and lay evidence in the claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and either his hemorrhoids or GERD. Although the Board recognizes that the Veteran is competent to report symptoms of hemorrhoids and stomach/esophageal issues, the evidence in this case clearly demonstrates that his hemorrhoids and GERD developed many years following separation from service. There is simply nothing in the record to support a finding that his hemorrhoids or GERD began in or is otherwise in any way related to service. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for hemorrhoids and GERD, and there is no doubt to be otherwise resolved. As such, the appeal as to these issues is denied. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issue remaining on appeal. 1. Entitlement to service connection for bronchitis, to include as a result of asbestos exposure, is remanded. Service treatment records reflect numerous treatment visits, spread out throughout the Veteran’s twenty years of active duty service, for bronchitis. The Veteran asserts that his bronchitis is related to asbestos exposure in service. It is unclear from the record whether the Veteran is diagnosed with a current chronic bronchitis disability related to service. The Board finds a VA examination and opinion are necessary. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Develop the Veteran’s claim of exposure to asbestos during service. A formal finding should be made regarding the likelihood that the Veteran was exposed to asbestos during his active service. The finding should include a rationale and be associated with the record. 2. After the completion of the foregoing, arrange for the Veteran to undergo VA examination to determine the nature and etiology of his bronchitis disability. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examination, and the examiner must indicate that such review occurred. The examiner must provide well-reasoned opinion on: Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed bronchitis disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service, to include asbestos exposure. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinion without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel