Citation Nr: 18160735 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-05 776A DATE: December 27, 2018 ORDER 1. The appeal to reopen a claim of service connection for hearing loss is granted. 2. Service connection for a low back disability is denied. 3. Service connection for allergic rhinitis is denied. REMANDED 4. Entitlement to service connection for hearing loss is remanded. 5. Entitlement to service connection for tinnitus is remanded. 6. Entitlement to service connection for sleep apnea is remanded. 7. Entitlement to service connection for hypertension is remanded. 8. Entitlement to service connection for erectile dysfunction (ED) is remanded. 9. Entitlement to service connection for a psychiatric disability is remanded. 10. Entitlement to a compensable rating for residuals of a left foot fracture is remanded. FINDINGS OF FACT 1. A June 2011 rating decision denied service connection for hearing loss, essentially on the basis that such disability was not shown. 2. Evidence received since the June 2011 rating decision shows that the Veteran has a hearing loss disability; relates to an unestablished fact necessary to substantiate the claim of service connection for hearing loss; and raises a reasonable possibility of substantiating such claim. 3. A low back disability was first manifested several years after service, and the preponderance of the evidence is against a finding that such disability is etiologically related to the Veteran’s service. 4. The Veteran is not shown to have allergic rhinitis. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for hearing loss may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. Service connection for allergic rhinitis is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1981 to February 1986 (and had three months of prior active duty service in the National Guard). These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2014, December 2015 and January 2017 rating decisions. The Veteran's service treatment records (STRs) show that in January 1984, he was referred to an ear, nose and throat clinic with a notation of a right ear high frequency hearing loss. It was noted that the ear was irrigated one month prior. In February 1984, he complained of a cold. Examination found nasal drainage. The assessment was allergic rhinitis. In April 1984, he complained of (thoracic) back pain for eight days after heavy lifting. There was increased discomfort with any movement. Examination found that trunk range of motion was limited. The impression was thoracic paraspinal muscle strain. Later that month it was noted that the thoracic back pain was resolving. The assessments were thoracic back pain and muscle strain. Private medical records show that in April 2008, the Veteran was seen for unrelated complaints. Systems review was positive for hearing loss and negative for back pain. VA outpatient treatment records show that in March 2009, the Veteran stated that his hearing loss had been gradual. A diagnosis was deferred. On May 2009 VA audiological examination, the Veteran reported having decreased hearing for three or four years. He related that he was exposed to grenades, grenade launchers and heavy vehicles in service. The examiner noted that puretone and speech reception test results were inadequate for rating purposes; a diagnosis was deferred pending additional evaluation. The examiner observed that no supporting audiometry was found to support the reference in the Veteran's STRs to a right ear high frequency hearing loss. On July 2009 VA audiological examination, the Veteran reported noise exposure in service to guns, grenade launchers and trucks. He also noted occupational noise exposure from his work in a factory since 1986. The examiner stated that the results of the examination could not be used for rating and were not being reported. She said that the Veteran had very poor puretone/speech recognition agreement, and that the results were much worse than one would expect based on his ability to communicate. He was reinstructed several times, but the examiner was unable to obtain accurate results. She stated that without his cooperation, it would be hard to obtain results for the examination. He had been tested twice and the results were not reliable either time. A September 2009 rating decision denied service connection for hearing loss, finding that such disability was not shown. A June 2011 rating decision found that new and material evidence had not been received to reopen the claim of service connection for hearing loss. The Veteran was notified of the June 2011 rating decision and did not appeal it. Private medical records show that in March 2014, the Veteran presented with worsening low back pain. He also reported a history of a hearing loss dating back to service. The assessment was chronic low back pain. On December 2014 VA back examination, the Veteran related that during service he had received conservative treatment for low back pain. The diagnoses were lumbosacral strain and central disc bulging. The examiner opined that it was less likely as not that the Veteran's back condition is related to the findings in service. He stated that it was more likely related to aging, work history, and weight. He noted that the Veteran had worked until 2008, and was on Social Security disability for an unrelated condition. VA outpatient treatment records show that in September 2017, the Veteran reported he had a hearing loss for several years, and had right ear surgery in 2011. Audiometry found that he had a normal to mild conductive right ear hearing loss and a moderately severe mixed loss in the left ear. Claim to reopen 1. The appeal to reopen a claim of service connection for hearing loss is granted. When there is a final denial on a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. 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 requirement that new and material evidence must raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As the prior final rating decisions denied service connection for hearing loss essentially on the basis that such disability was not shown in service, for evidence received since to relate to an unestablished fact necessary to substantiate the claim (and be new and material), it would have to tend to show that the Veteran has a hearing loss disability that is/may be related to his service. Evidence received since the June 2011 rating decision includes a March 2017 VA outpatient treatment report showing that the Veteran has a bilateral hearing loss. Such evidence bears directly on the unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Therefore, it is new and material, and the claim of service connection for hearing loss may be reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). 2. Service connection for a low back disability is denied. The Veteran states that his low back disability had its onset in service. He notes that he was treated for low back complaints in service. His STRs confirm that he was seen on several occasions in April 1984 and was found to have a thoracic muscle strain. There is no further reference in the STRs of any complaints or findings concerning the low back. There is no indication for many years after service of any problems involving the low back. Notably, in April 2008, he denied low back pain. It is not in dispute that the Veteran has a low back disability. What remains to be determined is whether the current low back disability is etiologically related to his service/the complaints and findings noted therein. Whether current lumbosacral strain is related to acute complaints in remote service is a medical question, beyond the scope of common knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any evidence linking his current low back disability, which was first shown to be chronic decades after service, to his service. The only competent (medical) evidence in the record that addresses the matter is in the opinion by the December 2014 VA examiner indicating that it is less likely than not that the Veteran’s low back disability is related to his service. He attributed the back disability to aging, the Veteran's work history, and his weight, thus providing rationale identifying a nonservice-related alternate etiology for the low back disability. The opinion is probative evidence in this matter. The Veteran has not provided any competent (medical) evidence to the contrary. Accordingly, the preponderance of the evidence is against the claim, and the appeal in this matter must be denied. 3. Service connection for allergic rhinitis is denied. The threshold question in this matter is whether the Veteran has (or during the pendency of the claim has had) allergic rhinitis. His STRs show that he was treated for allergic rhinitis in February 1984. He has not submitted any medical evidence establishing that at any time since service he has had allergic rhinitis (and has not identified any such evidence that may be outstanding). Service connection is limited to where disease or injury in service has resulted in a current (shown during the pendency of the claim; see McClain v. Nicholson; 21 Vet. App. 319 (2007)) claimed chronic disability. In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the Veteran is not shown to have allergic rhinitis, the threshold legal and factual requirements for substantiating claim of service connection for such disability are not met. REASONS FOR REMAND 4. Service connection for hearing loss. 5. Service connection for tinnitus. 6. Service connection for sleep apnea. 7. Service connection for hypertension. 8. Service connection for ED. 9. Service connection for a psychiatric disability. Regarding hearing loss disability, the Veteran states that he was subjected to acoustic trauma in service. His service discharge certificate shows that he was storage and handling specialist. His STRs show that in January 1984 it was noted that he had a right ear high frequency hearing loss (but do not include a report of audiometry supporting such finding). In May and July 2009, he was afforded examinations to assess any hearing loss, but audiometry results were deemed unreliable; it was indicated that he was not cooperative. September 2017 VA outpatient treatment records show that he has a right ear conductive hearing loss and a left ear mixed hearing loss. Another examination to determine the etiology of the hearing loss is needed. On the May 2009 VA examination the Veteran stated that his tinnitus began in service. Consideration of the matter of service connection for tinnitus is deferred pending the development sought in connection with the claim of service connection for hearing loss. The Veteran claims that sleep apnea, hypertension and ED are disabilities secondary to his service connected right shoulder and left foot disorders. On December 2016 VA examinations, the examiner opined that it was less likely than not that sleep apnea, hypertension, and ED are proximately due to or the result of his service-connected right shoulder disability. The opinions do not address whether such disorders were aggravated by a service-connected disability (and are therefore incomplete). The Veteran claims that he has a psychiatric disability that was caused or aggravated by the pain from his service-connected disabilities. On November 2015 VA psychiatric examination, adjustment disorder with depressed mood was diagnosed. The examiner opined that it was less likely than not that the Veteran's psychiatric disability was proximately due to or the result of a service-connected condition. She noted that the Veteran was able to return to gainful employment and work in jobs that required physical labor for a number of years after service; therefore, it was less likely as not that his depression was caused by the shoulder bursitis. The opinion does not address whether the Veteran’s psychiatric disability (including depression) has been aggravated by a service-connected disability (and is therefore inadequate). Moreover, that the Veteran was able to return to work does not address whether his psychiatric disability was caused or aggravated by a service-connected disability. Increased rating 10. Entitlement to a compensable rating for residuals of a left foot fracture. The Veteran was last examined by VA to assess his left foot fracture residuals in December 2014. He states that the disability has since increased in severity. Given the allegation of worsening, and the length of the interval since he was last examined, a contemporaneous examination to assess the disability is necessary. VA medical records show that he was seen for left foot pain in March 2016 and was fitted with an ankle brace. The matters are REMANDED for the following: 1. Arrange for a VA audiological evaluation of the Veteran (with audiometric studies) to confirm the existence, and if found ascertain the likely etiology, of any current hearing loss disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should indicate whether the Veteran has a hearing loss disability in either, or both, ear(s) (as defined in 38 C.F.R. § 3.385), and if so opine whether it is at least as likely as not (a 50 percent or higher probability) that such disability is etiologically elated to his service, to include as due to exposure to noise therein. The rationale provided should include comment on the notation in service of a right ear high frequency hearing loss. The examiner should also opine whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s tinnitus is etiologically elated to his service, to include as due to exposure to noise therein. All opinions must include rationale with citation to factual data/medical literature, as deemed appropriate. 2. Arrange for the Veteran’s record to be forwarded to the December 2016 VA examiner for review and an addendum opinion regarding the likely etiology of his sleep apnea, hypertension and ED (if that provider is unavailable, forward the record to another appropriate VA physician for review and the opinions sought). [If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged.] The consulting provider should opine whether it is at least as likely as not (a 50 percent or higher probability) that sleep apnea, hypertension, and/or ED were caused or aggravated (the opinion must address aggravation) by the service-connected right shoulder or left foot disabilities (and related pain/discomfort). All opinions must include rationale. 3. Arrange for a psychiatric examination of the Veteran to determine the nature and likely etiology of his psychiatric disability. On review of the record and examination of the Veteran, the examiner should identify the Veteran’s psychiatric disability by diagnosis, and opine whether it is at least as likely as not (a 50 percent or higher probability) that the diagnosed psychiatric disability was caused or aggravated (the opinion must address aggravation) by his service connected right shoulder and left foot disabilities. The examiner must specifically address whether pain due to such disabilities aggravates the psychiatric disability. All opinions must include rationale. 4. Arrange for the Veteran to be examined by an appropriate clinician to assess the severity of his left foot fracture residuals. The Veteran’s record (to include any currently outstanding records of treatment he identifies) must be reviewed by the examiner. The examiner should note all current pathology residual from the left foot fracture found, describe all related symptoms, and comment on the nature and extent of functional impairment that is associated with the disability. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel