Citation Nr: 18153204 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-38 595 DATE: November 28, 2018 ORDER New and material evidence having not been submitted, the petition to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. New and material evidence having been submitted, the petition to reopen the claim of entitlement to service connection for bilateral hearing loss 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 a cervical spine disability is denied. Entitlement to service connection for a low back disability is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. The issue of entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disorder, is remanded. The issue of entitlement to service connection for a heart condition, to include as secondary to an acquired psychiatric disorder, is remanded. The issue of entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, is remanded. The issue of entitlement to service connection for a gastrointestinal disability, to include as secondary to an acquired psychiatric disorder, is remanded. The issue of entitlement to service connection for erectile dysfunction as the residual of hernia surgery is remanded. The issue of entitlement to service connection for a scar resulting from hernia surgery is remanded. The issue of entitlement to special monthly compensation based on the need for aid and attendance of another person or being housebound is remanded. REFERRED The issues of entitlement to service connection for ventral hernia and inguinal hernia were raised in an August 2014 claim statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. The Board acknowledges that compensation for residuals of hernia surgery pursuant to 38 U.S.C. § 1151 was previously denied; however, the Veteran’s August 2014 claim indicates that he seeks direct service connection for ventral and inguinal hernia. FINDINGS OF FACT 1. In a December 2005 decision, the Board denied service connection for PTSD. 2. The evidence received since the December 2005 Board decision is cumulative and redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD, and does not raise a reasonable possibility of so substantiating the claim. 3. In a May 1976 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss. 4. The evidence received since the May 1976 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 5. Bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 6. Tinnitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 7. A cervical spine disability did not begin during active service, and is not otherwise related to an in-service injury, event, or disease. 8. A low back disability, to include degenerative changes of the lumbar spine, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The December 2005 Board decision is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 3.160(d), 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The May 1976 rating decision is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 3.160(d), 20.1103 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). 6. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). 7. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 8. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Petition to Reopen Claim for PTSD Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 Board denied the Veteran’s claim of entitlement to service connection for PTSD in December 2005. It concluded that the Veteran’s reported stressor was not corroborated, and that, on that basis, the criteria for service connection were not met. The record before the Board at the time of the December 2005 decision included treatment records reflecting diagnoses of PTSD. The record also included the Veteran’s statements describing an in-service assault which he maintained had resulted in PTSD. Specifically, he related that while he was in boot camp, during an inspection, a sergeant noticed a problem with something in his locker. This resulted in the Veteran’s entire unit being confined to base over the weekend. He stated that during the night, he was attacked by a group of his fellow servicemen (approximately 30), and was kicked and beaten to the extent that he lost consciousness. He stated that he was threatened with death if he reported the incident. In its 2005 decision, the Board noted that it had reviewed service treatment and personnel records, but found no reference to the alleged incident. Specifically, the Board acknowledged that the Veteran was treated for drug abuse during service and was provided a psychiatric evaluation, during which he did not mention to the examiner anything about the alleged incident. He did not contend otherwise, but has stated that he was afraid to report the incident for fear of reprisal by his fellow servicemen. The record also contained the transcript of a January 2003 hearing, during which the Veteran stated that he received injuries to his testicles and abdominal area from the alleged assault, which later required surgery to repair. The record also contained a letter from a fellow serviceman, J.F., who attended boot camp with the Veteran. J.F. stated that he believed the Veteran’s account of what happened, and it was consistent with his own experiences. However, the Board rejected the statement as competent lay evidence on various bases, to include because J.F. was not a witness to the alleged incident. In support of the Veteran’s August 2014 petition to reopen, the evidence added to the record includes the Veteran’s statements describing the alleged in-service assault, as well as current VA treatment records. To the extent that the Veteran describes the alleged incident during service, these statements are cumulative, as such arguments were considered by the Board in December 2005. Moreover, evidence of a diagnosis of PTSD was acknowledged by the Board in 2005, and any evidence indicating such is also cumulative. The evidence added to the record does not include any new evidence supporting a finding that the Veteran’s reported stressor occurred. Thus, the evidence added to the record since the December 2005 Board decision is not new and material for the purpose of reopening the claim. In consideration of the foregoing, the Board finds that the critical defect existing at the time of the December 2005 Board decision has not been addressed by new evidence, much less cured, and thus the claim of entitlement to service connection for PTSD may not be reopened. Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of diseases of the central nervous system, arthritis, and cardiovascular renal disease may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). Entitlement to service connection for bilateral hearing loss Entitlement to service connection for tinnitus Service connection for bilateral hearing loss was denied in a May 1976 rating decision, in part, because the Veteran did not have objective audiometric findings that met VA’s criteria for hearing loss disability. Since then, evidence added to the record shows that the Veteran has hearing loss that is considered a disability for VA compensation purposes. Thus, the claim may be reopened. 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, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered 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. Service personnel records indicate that the Veteran served as a mechanic. He maintains that he worked on the flight line and was exposed to noise from ground turbine compressors as well as jet engines. He argues that he was told of hearing loss in approximately 1975. Service treatment records reflect that on separation examination in March 1975, the following puretone thresholds were elicited: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 0 LEFT 10 5 5 5 0 On VA examination in April 1976, audiometric examination resulted in the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 Not tested 10 LEFT 15 10 10 Not tested 10 During hospitalization in 1982, various medical diagnoses were noted, but none referable to the Veteran’s hearing acuity. In May 1993, the Veteran stated that he noticed difficulty hearing when he separated from the Air Force. He acknowledged that he was told at that time that his hearing loss was not severe enough to qualify for a rating. He indicated that his hearing had worsened since then. A February 1999 treatment record from Walkertown Family Practice indicates the Veteran’s complaint of ringing in his ears for a couple of weeks. The diagnosis was tinnitus, and the Veteran was provided antibiotics and allergy medication. A May 2003 VA treatment record notes that the Veteran denied having hearing aids. A March 2014 VA treatment record indicates that hearing aids were fitted and issued to the Veteran. On VA audiological examination in June 2016, the Veteran’s history was reviewed. The following puretone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 50 55 70 LEFT 35 50 50 60 70 Speech recognition scores were 94 percent for the right ear and 96 percent for the left. The examiner concluded that hearing loss not related to service. She noted that service treatment records indicated normal hearing at entrance and separation, with no significant permanent shift in hearing thresholds. She further noted that there was no record of complaint or treatment for hearing loss, despite evidence of noise exposure on active duty. She pointed to the 2006 findings of the Institute of Medicine that based on the current understanding of auditory physiology, a prolonged delay in the onset of noise induced hearing loss was unlikely. She also concluded that tinnitus was not related to service. She reasoned that there was no evidence of chronicity or continuity of tinnitus since service. Having carefully reviewed the evidence pertaining to this claim, the Board has determined that service connection is not warranted. The weight of the evidence does not demonstrate objective evidence of hearing loss disability for VA compensation purposes until 2016. Moreover, the first credible evidence of tinnitus dates to February 1999, when the Veteran reported ringing in his ears for two weeks. Thus, service connection is not warranted on a presumptive basis. Moreover, while the evidence reveals that the Veteran has current hearing loss disability and tinnitus, the most competent and probative evidence of record does not etiologically link these disabilities to service or any incident therein. Rather, the June 2016 VA examiner opined that neither bilateral hearing loss nor tinnitus were related to service. She concluded that, based on normal hearing sensitivity on service entrance and separation, it was less likely than not that hearing loss was related to or caused by military noise exposure. This examiner provided a reasoned opinion based on a complete review of the Veteran’s history, interview and examination, to include the type of noise exposure that the Veteran had during service. In assigning high probative value to the VA examiner’s opinion, the Board notes that she had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran’s history or that she misstated any relevant fact. The Board thus finds the VA examiner’s opinion to be of greater probative value than the Veteran’s unsupported statements. The Board acknowledges that the VA examiner relied, in part, on a lack of hearing loss diagnosis during service. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hensley does not state, however, that the lack of a diagnosis cannot be considered as a factor in determining whether a nexus exists. Here, the examiner fully reviewed the record, and specifically noted the Veteran’s service and post-service history. The Veteran’s lay statements were considered. However, on review of the entire record, in the examiner’s opinion, a relationship was not established. Because the examiner considered more than just the lack of a diagnosis, the Board finds that the opinion is, in fact, adequate for the purpose of deciding this claim. To the extent that the Veteran asserts that his current hearing loss and tinnitus are related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed hearing loss disability and tinnitus, because he does not have the requisite medical knowledge or training, and because such matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As discussed, the VA examiner considered the Veteran’s documented history, but ultimately concluded that the current hearing loss and tinnitus are not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran’s service. While the record contains evidence of bilateral hearing loss disability and tinnitus, the preponderance of the evidence is against finding that any such diagnosis is related to any injury or disease in service. Accordingly, the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2017). Entitlement to service connection for a cervical spine disability Entitlement to service connection for a low back disability The Veteran maintains that he has cervical spine and low back disabilities that are related to service. He has argued that he was injured during an incident during service when he was assaulted by other Airmen while he slept. Service treatment records are negative for any complaint or abnormal finding referable to the Veteran’s neck or low back. They indicate that on separation examination in March 1975, the Veteran denied recurrent back pain, lameness, and arthritis. He indicated that he felt good. Clinical examination revealed normal spine and musculoskeletal. The summary of defects and diagnoses did not include any reference to the spine. During hospitalization at a VA facility for alcohol dependence in 1982, the Veteran was treated for neck and back sprain. An incident report indicates that the Veteran slipped in a lobby bathroom, striking his right buttock against the floor. He was seen by a physician, complaining of pain in the cervical and lumbar regions. Examination revealed mild tenderness but no restriction of movement. X-rays were negative. The hospital Chief of Staff and Director concluded that no further action was required. The discharge summary notes acute neck and back sprain, and indicates that the Veteran’s complaints in regard to the incident were exaggerated. In November 1982, the Veteran’s claim of entitlement to compensation for claimed neck and low back disability as the result of the incident was denied. The AOJ concluded that there was no additional disability resulting from VA authorized hospitalization. A February 1998 initial visit record from Greensboro Orthopaedic Center indicates that the Veteran had injured his low back while working for United Parcel Service loading trucks. The assessment was acute lumbar sprain. A March 1998 MRI study revealed a small central disc herniation at L5-S1. An August 2001 examination report for Social Security Administration (SSA) purposes indicates diagnoses of degenerative joint disease of the neck and back, as well as a herniated disc. The Board concludes that, while the Veteran has degenerative joint disease of the neck and back, as indicated by the evidence cited above, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Walker; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). To the extent that the Veteran asserts that he has degenerative joint disease of the neck and back that are related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnoses because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran’s service. While the record demonstrates a diagnosis of degenerative joint disease, it does not contain reliable evidence which relates these claimed disabilities to any incident of service. For these reasons, the Board concludes that the claims of entitlement to service connection for neck and back disabilities must be denied, as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Board notes that the record contains various psychiatric diagnoses, to include depression and anxiety disorder. While the Board determined above that the claim of entitlement to service connection for PTSD is not reopened, additional development and action is necessary with respect to the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Veteran maintains that his current acquired psychiatric disorders other than PTSD are related to service. Service records reflect that the Veteran experienced difficulty during service and was ultimately discharged due to unsuitability. While a VA examiner diagnosed anxiety disorder and depressive disorder, she did not provide an opinion regarding the etiology of these diagnoses. An opinion should be obtained regarding the etiology of any currently diagnosed acquired psychiatric disorder other than PTSD. Entitlement to service connection for a surgical scar, claimed as the residual of hernia surgery Entitlement to service connection for erectile dysfunction, claimed as a residual of hernia surgery As noted above, the issues of entitlement to service connection for ventral and inguinal hernia were raised by the Veteran in August 2014. The Board observes that the Veteran had previously claimed compensation for residuals of hernia surgery pursuant to 38 U.S.C. 1151, and that his claim was denied. However, in August 2014, he asserted that service connection was warranted for hernias as directly related to service. This claim has not been adjudicated. Because the outcome of this adjudication might impact the outcome of the claims for surgical scar and erectile dysfunction, the Board has concluded that it would be inappropriate at this juncture to enter a final determination on these issues. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Thus, the issues of entitlement to service connection for surgical scars and erectile dysfunction should not be readjudicated until the referred issues of entitlement to service connection for ventral and inguinal hernia have been addressed by the AOJ. Entitlement to service connection for a sleep disorder Entitlement to service connection for a heart condition Entitlement to service connection for hypertension Entitlement to service connection for a gastrointestinal disability, to include hiatal hernia and GERD The Veteran seeks service connection for a sleep disorder, a heart condition, hypertension, and a gastrointestinal disability, to include as secondary to an acquired psychiatric disorder or to medications prescribed for any service-connected condition. While the Veteran is not currently in receipt of VA disability compensation, development and adjudication on remand might result in service connection. Thus, the Board concludes that these issues are inextricably intertwined with the remanded issues of entitlement to service connection for an acquired psychiatric disorder other than PTSD and for hernias. Entitlement to special monthly compensation based on the need for aid and attendance of another person or being housebound Finally, because the development and adjudication directed in this remand might produce evidence supportive of the claim for special monthly compensation, the Board has concluded that this issue is inextricably intertwined with the remanded issues and should not be readjudicated until remand actions are complete. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder other than PTSD. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that any diagnosed acquired psychiatric disability is related to any event of service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The complete rationale for any conclusion reached should be provided. 2. Then, after undertaking any additional development that is deemed warranted, adjudicate the referred issues and readjudicate the claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel