Citation Nr: 18149831
Decision Date: 11/13/18	Archive Date: 11/13/18

DOCKET NO. 16-15 394
DATE:	November 13, 2018
ORDER
Whether new and material evidence has been received to reopen service connection for a bilateral ear disability (including hearing loss) is granted.
Entitlement to service connection for a bilateral ear disability, including hearing loss, is granted.
REMANDED
Entitlement to service connection for a gastrointestinal disability is remanded.
Entitlement to service connection for arthritis, including systemic arthritis, is remanded.
Entitlement to more than a 30 percent rating for service-connected ischemic heart disease is remanded.
Entitlement to more than a 30 percent rating for service-connected posttraumatic stress disorder (PTSD) is remanded.
Entitlement to a compensable rating for service-connected hypertension is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1. A final July 2011 rating decision denied the Veteran service connection for bilateral hearing loss because there was no evidence that such disability was related to service, to include noise exposure during a bombardment of an ammunition dump in Da Nang, Vietnam; evidence received since that denial includes new statements and VA treatment records showing consistent, clarifying reports that hearing loss began in service and has progressively worsened since; relates to an unestablished fact necessary to substantiate the underlying claim of service connection and, considering the low threshold for reopening under Shade v. Shinseki, 24 Vet. App. 110 (2010), raises a reasonable possibility of substantiating that claim.
2. The Veteran has a current diagnosis for bilateral sensorineural hearing loss, VA has conceded a psychiatric stressor involving an ammunitions dump bombardment and explosion that he says also involved hazardous noise exposure or acoustic trauma, and there are competent, credible lay reports (in both appellate and clinical settings) attesting to hearing loss beginning after that event in service and growing progressively worse since; thus, the Board finds the evidence is at least in relative equipoise as to whether service connection for bilateral sensorineural hearing loss is warranted on a presumptive basis, based on continuity of symptoms since service; in so finding, the Board acknowledges that the only medical opinion of record is negative and rather extensive, but notes that it crucially does not consider the Veteran’s competent and credible lay reports of continuous symptoms described above and, therefore, cannot afford it significant probative weight.
CONCLUSIONS OF LAW
1. The criteria for reopening a claim for service connection for a bilateral ear disability (including hearing loss) have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
2. The criteria for service connection for a bilateral ear disability, including hearing loss, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant is a Veteran who served on active duty from October 1966 to July 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision. The matter involving TDIU was never formally appealed, but must be considered part and parcel of the concurrent appeals seeking higher ratings for service-connected disabilities, particularly as the Veteran alleged that they contribute to his claimed unemployability. Although he initially requested a hearing in conjunction with this appeal, he withdrew that request by June 2017 correspondence. For the reasons discussed above, the Board is reopening and granting service connection for bilateral ear disability (including hearing loss), obviating any need for further discussion of that claim at this time.
REASONS FOR REMAND
1. Entitlement to service connection for a gastrointestinal disability is remanded.
A review of the record shows the Veteran has not been afforded a VA examination in conjunction with this appeal, despite notations of stomach problems in VA treatment records—i.e., gastritis and gastroesophageal reflux disease (GERD)—and confirmed service in the Republic of Vietnam (warranting a presumption of herbicide exposure therein). Thus, an examination is needed to obtain diagnostic and etiological clarification.
2. Entitlement to service connection for arthritis, including systemic arthritis, is remanded.
Just as above, it does not appear the Veteran was afforded a VA examination in conjunction with this appeal despite notations of arthritis in post-service records he explicitly alleges began during service or notations of musculoskeletal injuries in service (particularly as there is evidence of pathology affecting the hands in both). Furthermore, the Veteran has confirmed service in Vietnam (and therefore was presumptively exposed to herbicides therein). The medical evidence of record also leaves unclear what the precise diagnostic picture associated with the alleged arthritic symptoms is. Consequently, an examination is needed to obtain diagnostic and etiological clarification.
3. Entitlement to increased ratings for service-connected PTSD, hypertension, and ischemic heart disease is remanded.
The record shows the Veteran has not been examined in conjunction with these appeals since 2014. As an accurate current disability picture is crucial to providing an appropriate rating for the disabilities on appeal, remand for contemporaneous examinations is needed.
4. Entitlement to TDIU is remanded.
This matter is inextricably intertwined with the other claims being remanded and, therefore, adjudication thereof must be deferred at this time.
The matters are REMANDED for the following action:
1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 
2. Schedule the Veteran for an examination by a gastroenterologist to determine the nature and etiology of any gastrointestinal disability entities found. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following:
(a.) Please diagnose all gastrointestinal disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria.
(b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include presumed herbicide exposure therein.
A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).
3.  Schedule the Veteran for an examination by an orthopedist to determine the nature and etiology of any arthritic disabilities. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following:
(a.) Please diagnose all arthritic or musculoskeletal disability entities found. The examiner must specifically indicate whether the Veteran has a systemic arthritis as well as any affecting specific joints. All diagnostic findings (or lack thereof) must be reconciled with conflicting medical and lay evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria.
(b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include notations of injuries and the presumed herbicide exposure therein.
A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).
4.  Then, arrange for the Veteran to be examined by a cardiologist to determine the current severity of his service-connected ischemic heart disease and hypertension. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in sufficient detail to allow for application of the pertinent rating criteria. 
The examiner should also comment on the expected occupational impact of such disabilities, to include identifying all resultant functional impairment and the types of work that would be precluded and those that would remain feasible.
A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).
5. Then, arrange for the Veteran to be examined by a psychiatrist or psychologist to determine the current severity of his PTSD. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pertinent symptoms, pathology, and impairment associated with such disability in sufficient detail to allow for application of the pertinent rating criteria. Specifically, the examiner MUST identify the degree of occupational and social impairment found on examination and comment on the expected impact of the Veteran’s psychiatric disability on his ability to work, identifying those types of work that would be precluded and those that would remain feasible.
The examiner must also identify, by diagnosis, all psychiatric disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record and, if any documented diagnoses are either not or no longer felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. If the Veteran is found to have other psychiatric diagnoses IN ADDITION TO his service-connected disability, the examiner must indicate whether there is clear evidence allowing for differentiation of the symptoms, pathology, or impairment attributable to service-connected and nonservice-connected diagnoses, and explain why. If so, the examiner must clearly identify all symptoms and impairment found and attribute them to their appropriate underlying diagnoses.
The examiner must provide a detailed explanation (rationale) for all opinions. (By law, the Board may not rely on any conclusion not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may require clarification).




6. Then, arrange for any additional development indicated—i.e., requesting additional records, examinations, or opinions, or referring the matter for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16(b)—as necessary before readjudicating the matters on appeal (including TDIU).

 
VICTORIA MOSHIASHWILI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Yuan, Associate Counsel