Citation Nr: 18155421 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-53 021 DATE: December 4, 2018 ORDER New and material evidence has been received, the claim to reopen the previously denied claim for service connection for a stomach condition, now claimed as a gastrointestinal condition and the claim is granted to that extent only. New and material evidence having not been received, the claim to reopen the previously denied claim for service connection for residuals, appendectomy, now claimed as appendix, unnecessary surgical loss of organ, is denied. New and material evidence having not been received, the claim to reopen the previously denied claim for service connection for high blood pressure is denied. Entitlement to service connection for an unspecified left leg disability is denied. Entitlement to service connection for an unspecified right leg disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for headaches is denied. REMANDED Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A March 1983 rating decision denied the Veteran’s claims for entitlement to service connection for a stomach condition and for residuals, appendectomy. The Veteran did not appeal that decision and therefore, it became final. 2. Evidence submitted since the March 1983 rating decision with respect to the Veteran’s claim for entitlement to service connection for a stomach condition, now claimed as a gastrointestinal condition, is new and material as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. Evidence submitted since the March 1983 rating decision with respect to the Veteran’s claim for residuals, appendectomy, now claimed as appendix, unnecessary surgical loss of organ, is cumulative or redundant of evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection. 4. An August 2013 rating decision denied the Veteran’s claim for entitlement to service connection for high blood pressure. The Veteran did not appeal that decision and therefore, it became final. 5. Evidence submitted since the August 2013 rating decision is cumulative or redundant of evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection. 6. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a diagnosis of an unspecified left leg disability. 7. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a diagnosis of an unspecified right leg disability. 8. The preponderance of the evidence is against a finding that the Veteran’s sleep apnea was incurred in or is otherwise related to his active duty service. 9. The preponderance of the evidence is against a finding that the Veteran’s headaches were incurred in or are otherwise related to his active duty service. CONCLUSIONS OF LAW 1. The March 1983 rating decision that denied the Veteran’s claims for entitlement to service connection for a stomach condition and for residuals, appendectomy, is final. 38 U.S.C. §§ 7104, 7015(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a stomach condition, now claimed as gastrointestinal disability. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for residuals, appendectomy. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 4. The August 2013 rating decision that denied the Veteran’s claim for entitlement to service connection for high blood pressure is final. 38 U.S.C. §§ 7104, 7015(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. New and material evidence has not been received to reopen the claim of entitlement to service connection for high blood pressure. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 6. The criteria for entitlement to service connection for an unspecified left leg disability have not been met. 38 U.S.C. § 1131, 1154(a), 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. 7. The criteria for entitlement to service connection for an unspecified right leg disability have not been met. 38 U.S.C. § 1131, 1154(a), 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. 8. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1131, 1154(a), 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. 9. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. § 1131, 1154(a), 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps with active duty from October 1975 to March 1976 and from May 1976 to June 1980. The Board notes that the Veteran has additional pending claims, however, those claims have not been certified to the Board at this time and therefore, they will be the subject of a future Board decision. Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, 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. New evidence means existing 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. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a stomach condition, now claimed as a gastrointestinal condition The Veteran’s claim for entitlement to service connection for a stomach condition, now claimed as a gastrointestinal condition, was originally denied in a March 1983 rating decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. At the time of the March 1983, the competent evidence of record included the Veteran’s military personnel records, service treatment records, and post-service treatment records. The Veteran’s claim was denied on the basis that the Veteran did not have a chronic stomach disability either in service or at present. See, March 1983 rating decision. Since the filing of his claim to reopen the claim for entitlement to service connection for a stomach condition, now claimed as a gastrointestinal condition, additional post-service treatment records have been received. The Veteran’s newly received post-service treatment records indicate that the Veteran potentially has a diagnosis of and receives treatment for gastroesophageal reflux disease (GERD) beginning in or around August 2010. The Board finds that new and material evidence has been submitted since the March 1983 eating decision. Specifically, the newly submitted evidence contains post-service treatment records indicating a diagnosis of a gastrointestinal disability. The above-mentioned evidence is new in that it was not of record at the time of the previous denial in March 1983. It is material in that it speaks directly to the Veteran’s claim for entitlement to service connection for a gastrointestinal disability. Furthermore, when considered with the previous evidence of record, it could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 118 (2010). The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claim for entitlement to service connection for a stomach condition, now claimed as gastrointestinal disability, is reopened. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals, appendectomy, now claimed as appendix, unnecessary surgical loss of organ The Veteran’s claim for entitlement to service connection for residuals, appendectomy, now claimed as appendix, unnecessary surgical loss of organ, was originally denied in a March 1983 rating decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. At the time of the March 1983, the competent evidence of record included the Veteran’s military personnel records, service treatment records, and post-service treatment records. Since the filing of his claim to reopen the claim for entitlement to service connection for residuals, appendectomy, now claimed as appendix, unnecessary surgical loss of organ, additional post-service treatment records have been received. However, the Veteran has not provided any additional evidence to link the Veteran’s removal of his appendix, or any residuals, to his active duty service. While the post-service treatment records are new in that they were not of record at the time of the previous March 1983 rating decision, the Board finds that none of the evidence received since the March 1983 rating decision relates to a previous unestablished fact and therefore, the Board finds that the claim for entitlement to service connection for residuals, appendectomy, now claimed as appendix, unnecessary surgical loss of organ, is not reopened as new and material evidence has not been received. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for high blood pressure The Veteran’s claim for entitlement to service connection for high blood pressure was originally denied in an August 2013 rating decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. The Veteran’s claim was denied at this time because there was no evidence to link the Veteran’s current disability to his active duty service and there was no evidence to indicate that his high blood pressure was diagnosed within one year of his discharge from active duty. At the time of the August 2013 rating decision, the competent evidence of record included the Veteran’s military personnel records, service treatment records, and post-service treatment records. Since the filing of his claim to reopen the claim for entitlement to service connection for high blood pressure, additional post-service treatment records have been received. However, the Veteran has not provided any additional evidence to link his high blood pressure to his active duty service and are cumulative of the evidence considered in the August 2013 rating decision. While the post-service treatment records are new in that they were not of record at the time of the previous August 2013 denial, the Board finds that none of the evidence received since the August 2013 rating decision relates to a previous unestablished fact and therefore, the Board finds that the claim for entitlement to service connection for high blood pressure is not reopened as new and material evidence has not been received. Service Connection If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for an unspecified left leg disability 5. Entitlement to service connection for an unspecified right leg disability As the facts for the Veteran’s claim for entitlement to service connection for an unspecified left leg disability and for an unspecified right leg disability are virtually the same, they will be discussed together for ease of adjudication. The Veteran asserts that he has unspecified left leg and right leg disabilities. A condition precedent for establishing service connection is the presence of a current disability. The question currently for the Board on this issue is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any left leg disability or any right leg disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes that the Veteran was afforded a VA examination in connection with his claims in May 2015. During this examination, the examiner indicated that the Veteran had a diagnosis of arthritis in both knees and in his right hip, for which the Veteran is currently separately service-connected. However, the examiner did not indicate that the Veteran had any additional unspecified left leg or right leg disabilities. See, May 2015 VA examination. While the Veteran believes that he has a current diagnosis of unspecified left leg and right leg disabilities, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the Board finds that the Veteran does not have a current diagnosis of any unspecified left leg or right leg disabilities, service connection for both claims is therefore denied. 6. Entitlement to service connection for obstructive sleep apnea The Veteran asserts that he entitled to service connection for obstructive sleep apnea. As outlined above, a condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran has a current diagnosis of obstructive sleep apnea, as confirmed by an April 2018 sleep study. See, post-service treatment record dated April 2018. Accordingly, the first element for establishing service connection has been met. However, the Board concludes that while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence is against a finding that it began during the Veteran’s active duty service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes that the Veteran’s service-treatment records are silent for any in-service occurrence or treatment of obstructive sleep apnea or any symptoms that could be attributed to the beginnings of the disability. While the Board notes that the absence of documented treatment in service is not fatal to a service connection claim, the Board further notes that the earliest indication that the Veteran may have obstructive sleep apnea was in June 2016, which is decades following the Veteran’s discharge from active duty. See, post-service treatment records dated June 2016. While the Veteran is competent to report that which he perceives through his symptoms, he is not competent to provide an actual medical diagnosis, and at the time of the Veteran’s official April 2018 diagnosis, no etiological opinion was provided. The Board therefore finds that a remand for a VA examination is not warranted as the weight of the evidence currently of record is against a finding that the Veteran’s obstructive sleep apnea began in service or is otherwise related to the Veteran’s active duty. Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010). As stated above, the first formal documented diagnosis of obstructive sleep apnea was in April 2018, although the first indication of obstructive sleep apnea symptoms was in June 2016. The Board notes that the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). However, as there is no documented in-service event or occurrence of obstructive sleep apnea and the diagnosis was not given until many years following the Veteran’s discharge, the Board finds that the weight of the evidence is against entitlement to service connection for obstructive sleep apnea. 38 C.F.R. § 3.303. 7. Entitlement to service connection for headaches The Veteran asserts that he is entitled to service connection for headaches. As outlined above, a condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran has a current diagnosis of migraines, as confirmed by a January 2015 post-service treatment note. See, post-service treatment record dated January 2015. Accordingly, the first element for establishing service connection has been met. However, the Board concludes that while the Veteran has a current diagnosis of migraine headaches, the preponderance of the evidence is against a finding that it began during the Veteran’s active duty service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes that the Veteran’s service-treatment records are silent for any in-service occurrence or treatment of headaches, with the exception of one headache which was attributed to flu syndrome in May 1977 and subsequently resolved. See, service-treatment records dated May 1977. While the Board notes that the absence of documented treatment in service is not fatal to a service connection claim, the Board further notes that the earliest indication that the Veteran may have a headache disability is January 2015, which is decades following the Veteran’s discharge from active duty. See, post-service treatment records dated January 2015. The Veteran had additional treatment for headaches in September and October 2009, although he attributed the headaches to his failure to take his high blood pressure medication and noted improvement once he was given medication. See, post-service treatment records dated September and October 2009. While receiving treatment for other medical issues, the Veteran consistently denied any headache symptoms. While the Veteran is competent to report that which he perceives through his symptoms, he is not competent to provide an actual medical diagnosis, and at the time of the Veteran’s official January 2015 diagnosis of migraine headaches, no etiological opinion was provided. The Board therefore finds that a remand for a VA examination is not warranted as the weight of the evidence currently of record is against a finding that the Veteran’s headaches began in service or is otherwise related to the Veteran’s active duty. Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010). As stated above, the first formal documented diagnosis of a headache disability was in January 2015. The Board notes that the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). However, as there is no documented in-service event or occurrence of a headache disability and the diagnosis was not given until many years following the Veteran’s discharge, the Board finds that the weight of the evidence is against entitlement to service connection for headaches. 38 C.F.R. § 3.303. REASONS FOR REMAND While the Board sincerely regrets the delay, additional development is required before the Veteran’s remaining claims may be adjudicated on the merits. 1. Entitlement to service connection for a gastrointestinal disability is remanded. The Veteran asserts that he is entitled to service connection for a gastrointestinal disability. To date, the Board notes that the Veteran has not had a VA examination specific to his claim for entitlement to service connection for a gastrointestinal disability. A review of the Veteran’s post-service treatment records reflects a possibly diagnosis of and treatment for GERD. Additionally, the Veteran’s service treatment records that the Veteran experienced stomach discomfort while on active duty and he underwent an appendectomy shortly after his discharge. Accordingly, the Board finds that an examination is warranted to determine if the Veteran’s documented stomach discomfort could have been the early onset of his subsequently diagnoses GERD. As it stands, the Board finds that the evidence of record does not contain sufficient competent medical evidence to determine if the Veteran’s documented in-service stomach discomfort was an early symptom of his GERD, and therefore, an examination is warranted to determine the nature and etiology of the Veteran’s GERD. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. Additionally, the Board finds that the VA examination that the Veteran received in connection with his hearing loss and tinnitus claims is inadequate. The Veteran was afforded a VA audiological examination in June 2015 and at that time, the VA audiologist indicated that the tests results obtained from that examination “are not considered valid for rating purposes.” See, June 2015 VA examination. As the basis for the denial of the Veteran’s claims is the audiological evidence obtained during the Veteran’s June 2015 VA examination, the Board finds that a new examination is warranted to obtain valid audiological testing results. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran’s claim for tinnitus is closely intertwined with the Veteran’s claim for hearing loss and will be examined during the Veteran’s audiological examination, the Board will defer action on this claim at this time. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s file. 2. After obtaining any outstanding records, the Veteran should be scheduled for a VA examination with the appropriate medical personnel to provide an etiological opinion for his claims for a gastrointestinal disability, bilateral hearing loss and tinnitus. The entire claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinions: a. Determine if the Veteran has a current gastrointestinal disability, to include GERD. If so, state whether it is at least as likely as not that the Veteran’s GERD had its onset during service or is otherwise related to his active duty service. In providing this opinion, the examiner is asked to address the Veteran’s documented in-service stomach discomfort and his subsequent appendectomy shortly after his discharge. b. Determine whether the Veteran has hearing loss for VA purposes. If so, state whether it is at least as likely as not that the Veteran’s bilateral hearing loss had its onset during service or is otherwise etiologically related to his active duty service. The absence of a threshold shift in-service or other documented findings of any hearing loss in service is not, by itself, an adequate rationale to base a conclusion. c. Whether it is at least as likely as not that the Veteran’s tinnitus had its onset during service or is otherwise etiologically related to his active duty service. A complete rationale must be provided for all findings and conclusions reached. The examiner should discuss any lay statements made by the Veteran with respect to the etiology of his claimed disabilities. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. If the examiner determines that an opinion cannot be provided without resort to speculation or the inability to obtain accurate audiological findings, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definite opinion can be obtained. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel