Citation Nr: 18158672 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-47 657 DATE: December 18, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a right eye disability is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for gastroenteritis (also claimed as abdominal pain) is granted. Entitlement to service connection for bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for gastroenteritis is remanded. FINDINGS OF FACT 1. In an unappealed August 1999 rating decision, the Veteran was denied entitlement to service connection for a right eye disability and gastroenteritis (claimed as abdominal pain, possible ulcer). 2. The evidence associated with the record subsequent to the August 1999 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a right eye disability and gastroenteritis. 3. Bilateral hearing loss disability is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right eye disability. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for gastroenteritis. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1979 to May 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2013 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. During the course of the appeal, jurisdiction over this case was transferred to the RO in Atlanta, Georgia. The issue of entitlement to service connection for tinnitus has been raised by the record in a March 2014 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). Claims to Reopen In an August 1999 rating decision, the Veteran was denied entitlement to service connection for a right eye disability and gastroenteritis on findings that the Veteran did not have a right eye disability and gastroenteritis. The Veteran did not appeal that decision. The pertinent evidence received since the August 1999 rating decision includes medical evidence indicating that the Veteran has a right eye disability and gastroenteritis. With regard to the Veteran’s right eye disability, VA treatment records indicate that the Veteran has a pigmented lesion, choroidal lesion, dry eye syndrome, decreased visual acuity, fish eye disease, and mild cataract of the right eye. With regard to the Veteran’s gastroenteritis, a March 2014 VA examination shows the Veteran had diagnoses of gastroesophageal reflux disease (GERD) that manifested with epigastric distress and gastritis. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claims of entitlement to service connection for a right eye disability and gastroenteritis. Accordingly, reopening of the claims of entitlement to service connection for a right eye disability and gastroenteritis is warranted. Service Connection Claim – Bilateral Hearing Loss The Veteran has asserted that he has bilateral hearing loss disability as a result of acoustic trauma sustained in active service. A review of the Veteran’s service records shows that his military occupational specialty (MOS) during active duty was as a light wheel vehicle and power generation mechanic. The Board finds that hazardous noise exposure is consistent with the facts and circumstances of his service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) indicate the Veteran complained of decreased hearing acuity while the Veteran was in active service. Moreover, audiogram results recorded in the Veteran’s STRs indicate that the Veteran had right ear hearing loss during his active service. In this regard, a May 1993 audiogram shows that the Veteran had impaired hearing in the 3000 Hertz frequency of 75 decibels in the right ear. Moreover, a July 1995 in-service audiogram shows that the Veteran had impaired hearing in the 3000 Hertz frequency of 100+ decibels in the right ear. Further, an April 1998 STR indicates that he reported decreased hearing acuity. The Veteran is competent to report when he first experienced symptoms of hearing loss disability and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. Of record is a September 2009 audiogram indicating the Veteran has hearing loss for VA purposes in his left ear. Specifically, the September 2009 audiogram shows impaired hearing in the 4000 Hertz frequency of 45 decibels in the left ear. In March 2014, the Veteran was afforded a VA audiology evaluation. At that time, audiogram results at that time showed the Veteran did not have bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2018). However, the examiner opined that the Veteran’s bilateral hearing loss disability was caused by or the result of active service. In this regard, the examiner noted that Veteran had threshold shifts during his active service that “may occur with one noise event or be the result of cumulative noise exposure.” The examiner found the Veteran “beginning in 1989 [had] consistently showed a permanent shift in hearing thresholds” in the ears bilaterally. Thus, the examiner opined that the Veteran’s current bilateral hearing loss was at least as likely as not a result of military noise exposure. The Board finds the March 2014 VA audiology opinion to be adequate for adjudication purposes. In this regard, the examiner gave appropriate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms. In sum, the Board concedes that the Veteran sustained acoustic trauma in active service. The Veteran has competently and credibly reported decreased hearing acuity in service and since. Moreover, the Veteran’s STRs indicate the Veteran reported decreased hearing acuity during active service, and his STRs show right ear hearing loss for VA purposes during active service. Post-service treatment records show left ear hearing loss for VA purposes. Thus, the Veteran has current bilateral hearing loss disability for VA purposes. Finally, the March 2014 VA audiology opinion opined that the Veteran’s current bilateral hearing loss was at least as likely as not a result of his military service. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the Veteran’s remaining claims on appeal are decided. 1. Service Connection – Right Eye A review of the record shows that the Veteran contends that he has a right eye disability that is as a result of a welding injury during active service. Specifically, the Veteran contends that while welding, a spark injured his right eye. A review of the Veteran’s service treatment records (STRs) shows that the Veteran complained of and was treated for corneal abrasion during active service as due to a welding accident. A review of the record shows the Veteran was afforded VA examinations in January 2012 and April 2013. The Board finds the January 2012 and April 2013 VA opinions inadequate to decide the claim. In this regard, the VA examination opinions were, at times, internally inconsistent. Further, the VA examiners failed to adequately address the Veteran’s lay statements and contentions. Moreover, the VA medical opinions contradict each other and other pertinent medical evidence of record. As the opinions are not adequate, they are not a sufficient basis to support a denial of entitlement to service connection. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present right eye disability. 2. Service Connection – Hypertension The Board notes that the Veteran has consistently asserted that he has hypertension as due to his active service. A review of the Veteran’s STRs show the Veteran had elevated blood pressure readings during active service. In light of the Veteran’s statements and his diagnosis of hypertension, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present hypertension. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Service Connection – Diverticulitis and Gastroenteritis A review of the record shows that the Veteran contends that he has diverticulitis and gastroenteritis, claimed as abdominal pain, that is as a result of his active service. A review of the Veteran’s service treatment records (STRs) shows that the Veteran complained of and was treated for abdominal pain, vomiting, stomachache, coughing up blood, dizziness, nausea, abdominal discomfort, ulcers, and gastrointestinal issues at various times during his active service. Moreover, the Veteran’s STRs indicate that he underwent abdominal surgery as an infant. A review of the record shows the Veteran was afforded a VA examination for his abdominal pain in January 1999. At that time, the examiner did not provide a definitive diagnosis. A review of the record shows the Veteran was afforded a VA examination for his claimed diverticulitis in March 2014. At this time, the examiner diagnosed diverticulitis coli. The March 2014 VA examiner opined that the Veteran’s diverticulitis was less likely as not caused by his military service because it was not diagnosed until 5 or 6 years after separation from active service. The Board finds the January 1999 and March 2014 VA opinions inadequate to decide the claim. In this regard, the VA examiners failed to adequately address the Veteran’s lay statements and contentions. Moreover, the VA opinions do not provide an opinion as to aggravation of a disability that pre-existed service. As the opinions are not adequate, they are not a sufficient basis to support a denial of entitlement to service connection. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present abdominal disability. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s right eye disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner must address the Veteran’s August 1982 in-service corneal abrasion. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right eye disability is etiologically related to service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s hypertension. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner must address the October 1991 STRs indicating elevated blood pressure readings during the Veteran’s active service. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension is etiologically related to service. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present abdominal disability, to include diverticulitis and gastroenteritis. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should first identify all abdominal disabilities present during the pendency of the claim and proximate thereto. Once all abdominal disabilities have been identified, the examiner should provide the following findings: Does the Veteran have an abdominal disability that clearly and unmistakably existed prior to his active service and if so, was that disability clearly and unmistakably NOT aggravated by service? In forming the opinion, the examiner must note that the Veteran’s lay statements alone are not a sufficient basis with which to support a finding that a disability clearly and unmistakably existed prior to service. With regard to any currently present abdominal disability determined to NOT clearly and unmistakably exist prior to the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability is etiologically related to the Veteran’s active service. In forming the opinion, the examiner must consider and fully address the Veteran’s lay statements regarding the onset and continuity of his symptoms, and the Veteran’s report of an abdominal operation as an infant. The examiner must also consider the Veteran’s complaints of and treatment for nausea, vomiting, abdominal pain, stomachache, and coughing up blood during his active service. The rationale for all opinions expressed must be provided. 5. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development found to be warranted. 6. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. JOHN Z JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel