Citation Nr: 18151751 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-12 405 DATE: November 20, 2018 ORDER The application to reopen the claim of entitlement to service connection for right ear hearing loss disability is granted. The application to reopen the claim of entitlement to service connection for left ear hearing loss disability is denied. The application to reopen the claim of entitlement to service connection for sleep apnea is granted. The application to reopen the claim of entitlement to service connection for a back disorder is granted. The application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for a bilateral shoulder disability is remanded. Service connection for a back disorder is remanded. Service connection for right ear hearing loss is remanded. Service connection for sleep apnea is remanded. Service connection for a pulmonary lung disorder to include asthma and chronic obstructive pulmonary disease (COPD), including as due to asbestos exposure or as due to undiagnosed illness is remanded. Service connection for an acquired psychiatric disorder to include anxiety disorder and PTSD is remanded. Entitlement to a rating in excess of 20 percent for history of hyperuricemia with recurrent gouty arthritis is remanded. FINDINGS OF FACT 1. In an unappealed September 2011 rating decision, the RO denied service connection for a back disorder and PTSD on the basis of no current disability. 2. The evidence received since the September 2011 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims for service connection for a back disorder and PTSD as it suggests current disability. 3. In an unappealed September 2011 rating decision, the RO declined to reopen a claim for service connection for bilateral hearing loss that had been previously denied in a February 1997 rating decision on the continued basis of no current disability as to the right ear and a continued lack of evidence that a pre-existing left ear hearing loss was aggravated by service. 4. The evidence received since the September 2011 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for right ear hearing loss as it suggests current disability. 5. The evidence received since the September 2011 rating decision, by itself or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for left ear hearing loss as it does not suggest aggravation of pre-service left ear hearing loss by service. 6. In an unappealed October 2001 rating decision, the RO denied service connection for sleep apnea and an acquired psychiatric disorder to include anxiety on the basis of no current disability. 7. The evidence received since the October 2001 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims for service connection for sleep apnea and an acquired psychiatric disorder, as it suggests current disability. CONCLUSIONS OF LAW 1. The September 2011 rating decision is final with respect to the Veteran’s claims of entitlement to service connection for a back disorder, PTSD and bilateral hearing loss. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Since the September 2011 rating decision, new and material evidence has been received with respect to the Veteran's claims of entitlement to service connection for a back disorder, PTSD and right ear hearing loss; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Since the September 2011 rating decision, new and material evidence has not been received with respect to the Veteran's claim of entitlement to service connection for left ear hearing loss; therefore, the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The October 2001 rating decision is final with respect to the Veteran’s claims of entitlement to service connection for sleep apnea and an acquired psychiatric disorder to include anxiety. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. Since the October 2001 rating decision, new and material evidence has been received with respect to the Veteran’s claims of entitlement to service connection for sleep apnea and an acquired psychiatric disorder to include anxiety; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active naval service from November 1979 to November 1983, April 1984 to April 1988 and November 1988 to April 1996, to include service in Southwest Asia during the Gulf War. He and his daughter testified before the undersigned Veterans Law Judge (VLJ) in May 2018. At the hearing, the undersigned clarified the issues on appeal and made inquiry as to the existence of outstanding evidence as to the issues being decided. The actions of the VLJ comply with 38 C.F.R. § 3.103. Service Connection New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. 1. Right ear hearing loss, left ear hearing loss (disability) In a February 1997 rating decision, the RO denied the claim of service connection for right ear hearing loss on the basis that there was no current disability by VA standards. See 38 C.F.R. § 3.385. Service connection for the left ear was denied based on the finding that the left ear hearing loss pre-existed service and was not aggravated by service. The Veteran did not file a timely appeal; the decision became final. A claim to reopen was denied most recently in September 2011 based on a finding of no new and material evidence. In May 2014 the Veteran submitted an application to reopen the claim. At a May 2018 hearing before the undersigned VLJ, testimony was provided by the Veteran and his daughter that he has hearing loss due to service. He also submitted June 2018 VA treatment records reflecting his current complaints of hearing decline as well as findings of sensorineural hearing loss bilaterally. As the previous denial for the right ear was based on a finding that there was no current hearing loss by VA standards, the testimony, recent treatment and articles are relevant and constitutes new and material evidence, and reopening of the claim for service connection as to the right ear is warranted. The claim is addressed in the remand portion below. As the previous denial for the left ear hearing loss was based on a finding that left ear hearing loss pre-existed service and was not aggravated by service, the testimony and treatment record of current left ear hearing loss is not relevant and does not constitute new and material evidence. It is long established that the Veteran has left ear hearing loss. Such was noted in the 1997 rating decision. This decision was based on findings in an August 1996 VA audiological examination wherein the examiner found left ear hearing loss pre-existed service and left ear hearing thresholds were not significantly poorer on that examination when compared to the ones at service entrance. The Veteran has not submitted evidence that there was a threshold shift in service or that the left ear hearing loss was worsened in service. The argument that his hearing loss is related to service was already of record at the time of the prior denial, is redundant and not new. There is no new and material evidence. Reopening of the claim for service connection as to the left ear is not warranted. The claim to reopen is denied.] 2. Psychiatric disorder including PTSD, Back disorder, Sleep apnea, In an October 2001 rating decision, the RO denied the claims of service connection for psychiatric disorder to include anxiety and sleep apnea on the basis that there was no current disability. Service connection for a back disorder and PTSD was denied in a September 2011 rating decision, also on the basis that there was no current disability. The Veteran did not file timely appeals; the decisions became final. In May 2014 the Veteran submitted an application to reopen the claims. At a May 2018 hearing before the undersigned VLJ, testimony was provided by the Veteran and his daughter that he has current psychiatric disorder, to include PTSD, a back disorder and sleep apnea due to service. He also submitted recent VA treatment records reflecting his current complaints and treatment related to these disorders. He also submitted literature in support of his theory that he has orthopedic problems, including back disability, due to his welding duties in service. As the previous denials were based on findings of no current disability, the testimony, treatment records and articles are relevant and constitutes new and material evidence, and reopening of the claims is warranted. The claims are addressed in the remand portion below. REASONS FOR REMAND 1. Service connection claims: Pulmonary lung disorder to include asthma and COPD, bilateral shoulder disorder, back disorder, sleep apnea, acquired psychiatric disorder, to include anxiety disorder PTSD, right ear hearing loss are remanded. The Veteran and his daughter presented extensive candid testimony as to how these disabilities are currently present and are related to service. He explained that he has had psychiatric problems since service which he attributes to several factors in service. He reported long-term psychological effects of unfair treatment from a superior and a stressful incident on his way to work involving talking a man off a bridge rail who was about to jump. He and his daughter described a post-service life filled with psychiatric problems which he has come to realize are related to things in service. The Board notes that his personnel records do reference the bridge incident. His psychiatric problems are reportedly worsening and he has indicated that it took him awhile to realize these problems were due to service. The Veteran also described ongoing sleep apnea, respiratory issues and hearing loss that he believes are due to incidences of his service particularly to include his extensive welding, ionization exposure, asbestos exposure or undiagnosed illness. He reports that he has increasing hearing loss. He also traces current back and shoulder pain to welding work in service, which he reported was quite physically demanding and involved much overhead and heavy work as well as chemical exposure and ionization exposure which could weaken his joints. The Veteran and his daughter also reported recent hospitalization and treatment. The Veteran has submitted recent treatment records, articles and medical literature in support of his claims following his hearing. The Board cannot make a fully-informed decision on the issues because no VA examiner has opined, after a review of all of the pertinent evidnce to include his detailed testimony, recent submitted medical records, literature and articles, whether any of these claimed disorders are likley related to service. 2. A rating in excess of 20 percent for history of hyperuricemia with recurrent gouty arthritis. The Veteran testified his joints are painful and that this disability is productive of objectively impaired health, thus indicating that his disability has increased in severity since the last examination in 2014. In order to get a higher rating, he must demonstrate evidence of symptom combinations productive of impaired health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of this disability. The matters are REMANDED for the following action: 1. Obtain updated treatment and hospitalization records. 2. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ear hearing loss disability. The examiner must opine whether it is at least as likely as not related to in-service noise exposure, which is conceded to have occurred. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric disorder to include PTSD. The examiner must opine whether any identified disorder is at least as likely as not related to in-service events/stressors reported by the Veteran or consistent with his service. In this regard, the Veteran testified about multiple stressful incidents, to include his talking a man off a bridge while on his way to work. This is referenced in his service personnel record. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep apnea. The examiner must opine whether it is at least as likely as not related to service; or, (1) proximately due to service-connected disease or injury, or (2) increased in severity beyond its natural progression by service-connected disease or injury.] 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back and bilateral shoulder disorder. For each disorder present, the examiner must opine whether it is at least as likely as not related to service to include the exposures and strenuous activities (including welding) alleged by the Veteran; or, (1) proximately due to service-connected disease or injury, or (2) increased in severity beyond its natural progression by service-connected disease or injury. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of all pulmonary or lung disorders present to include any asthma and COPD. For each disorder present, the examiner must opine whether it is at least as likely as not related to service; or, (1) proximately due to service-connected disease or injury, or (2) increased in severity beyond its natural progression by service-connected disease or injury. For each disorder present, the examiner must also opine whether it at least as likely as not related to any of his duties as a welder or due to exposure to environmental hazards consistent with service as described and as reflected in his service personnel record. The information supplied by the Veteran about welding should be considered. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected history of hyperuricemia with recurrent gouty arthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 8. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal, including service connection for right ear hearing loss, an acquired psychiatric disorder to include anxiety and PTSD, sleep apnea, back disorder, bilateral shoulder disorder, pulmonary lung disorders present to include any asthma and COPD, and in   increased rating for history of hyperuricemia with recurrent gouty arthritis. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL