Citation Nr: 1807954 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-05 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder? 2. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder, to include anxiety and depression. 3. Entitlement to service connection for a bilateral hearing loss. 4. Entitlement to service connection for irritable bowel syndrome. 5. Entitlement to service connection for a disorder manifested by acid reflux. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for hypertension. 8. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran served on active duty for training from June 7, 1990 to August 10, 1990, and from June 13, 1991 to November 18, 1991 The claimant's current service connected disorders all arise from his second term of active duty for training, hence, he is a Veteran for that period alone. These matters come before the Board of Veterans' Appeals (Board) on appeal from March and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in April 2016 for further development. In a May 2016 rating decision entitlement to service connection for tinnitus was granted. As such, that issue has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The issues of entitlement to service connection for headaches, and an acquired psychiatric disorder, to include an anxiety disorder and depression are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a February 2010 rating decision VA denied entitlement to service connection for posttraumatic stress disorder. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Additional evidence received since the February 2010 rating decision is cumulative or redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for posttraumatic stress disorder. 3. Hypertension did not have its onset in service, and the preponderance of the evidence is against a finding that it was compensably disabling within one year of November 18, 1991, or is in any way related to service. 4. Bilateral hearing loss was not first manifested during active service, a sensorineural hearing loss was not disabling to a compensable degree within one year of November 18, 1991, and any current hearing loss is not otherwise related to service. 5. A disorder manifested by acid reflux was not demonstrated while on active duty for training, and there is no competent evidence linking the disorder to service. 6. An irritable bowel syndrome was not demonstrated while on active duty for training, and there is no competent evidence linking the disorder to service. 7. Sleep apnea was not demonstrated while on active duty for training, and there is no competent evidence linking the disorder to service. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying entitlement to service connection for posttraumatic stress disorder is final, and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Hypertension is not the result of a disease or injury incurred in or aggravated by service, it may not be presumed to have been so incurred, and it is not due to or aggravated by a service connected disorder. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. A bilateral hearing loss disability was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C. §§ 101(24), 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 4. A disorder manifested by acid reflux is not the result of disease or injury incurred in or aggravated by service nor is it proximately due to or aggravated by a disease for which service connection has already been established. 38 U.S.C. §§ 101(24), 1110, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.310. 5. Irritable bowel syndrome is not the result of disease or injury incurred in or aggravated by service nor is it proximately due to or aggravated by a disease for which service connection has already been established. 38 U.S.C. §§ 101(24), 1110, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.310. 6. Sleep apnea is not the result of disease or injury incurred in or aggravated by service nor is it proximately due to or aggravated by a disease for which service connection has already been established. 38 U.S.C. §§ 101(24), 1110, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). II. New and Material Evidence The appellant is seeking to reopen a claim of entitlement to service connection for posttraumatic stress disorder. Specifically, in February 2010 VA denied a claim of entitlement to service connection for posttraumatic stress disorder. The Veteran was notified of that decision; however, he did not perfect a timely appeal, or submit new and material evidence within a year. As such, the February 2010 decision is now final. 38 U.S.C. § 7105. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or 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. Id. The United States Court of Appeals for Veterans Claims interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As noted in the remand below the Veteran reports receiving Social Security benefits in part due to a mental health disorder. The Veteran, however, has not made any suggestion that those records are pertinent to his claim to reopen the issue of entitlement to service connection for posttraumatic stress disorder. As such, the Board finds that the duty to assist the appellant on this issue does not require further development. The February 2010 rating decision denied entitlement to service connection for posttraumatic stress disorder because the RO found that the evidence did not show a verified in-service stressor that could be linked to the Veteran's diagnosis. The evidence available at the time of the February 2010 rating decision included the appellant's service records which do not reveal that the appellant served in combat, or a corroborated non-combat stressor. The service treatment records do not reveal complaints, findings, or a diagnosis pertaining to posttraumatic stress disorder. VA outpatient records showed a history of possible posttraumatic stress disorder secondary to childhood trauma. Since February 2010 the Veteran has submitted medical records which show diagnoses of other psychiatric disorders. A VA examination report dated February 2017 reveals a clinical opinion that the Veteran experienced stressors while in service that are at least as likely as not related to fear of hostile military activity and are at least as likely as not responsible for his posttraumatic stress symptoms. A review of the Veteran's files, however, reveals that the appellant never served in combat, and was never exposed to hostile military or terrorist activity. Furthermore, there is no independent evidence that corroborates any claim that the Veteran was the victim of an inservice assault. Indeed, the first report of this allegation was documented during the February 2017 examination, and during that same examination, the Veteran reported that he was never a victim of emotional or physical abuse during military service. The Board finds that while the February 2017 opinion that the Veteran's posttraumatic stress disorder is related to fear of hostile military as well as the Veteran's claimed stressor are both new, they do not raise a reasonable possibility of substantiating the claim, and thus the claim is not reopened. 38 C.F.R. § 3.156(a) III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Where a chronic disease is shown during service, the subsequent manifestations at any later date, however remote, are service-connected, unless clearly attributable to intercurrent cause. A continuity of symptomatology is required where the condition noted during service is not shown to be chronic. 38 C.F.R. § 3.303 (b). However, continuity of symptomatology to substantiate service connection is limited to where involving a disease denoted as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain disabilities, such as hypertension and a sensorineural hearing loss, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hypertension For VA purposes, hypertension is defined as diastolic blood pressure that is predominantly 90 mm or greater, or systolic blood pressure that is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017). During his December 1989 service entrance examination, the Veteran responded, "No", when asked if he then had, or had ever had high or low blood pressure. Physical examination revealed that his blood pressure was within normal limits for VA purposes. The form was updated in June 1991, with no change in his initial response. The Veteran's service treatment records do not demonstrate an abnormal blood pressure reading at any time during his active duty service. The Veteran was treated for hyperventilation in July 1991. His reported blood pressure readings at that time were within normal limits. Likewise, his blood pressure was recorded as being within normal limits in September 1991. Indeed, at his November 1991 separation exam, the Veteran's blood pressure was again within normal limits for VA purposes. A diagnosis of hypertension was not established until April 2006. No medical opinion evidence has been offered linking hypertension directly to the appellant's military service. The Veteran was afforded a VA examination in February 2016. At that time, a VA examiner opined that the Veteran's hypertension was less likely as not incurred in or caused by military service. After careful consideration and review of the Veteran's medical records, the examiner noted that the recorded blood pressure readings during military service did not fall within the criteria for VA rating purposes for a diagnosis of hypertension. Indeed, the examiner noted that at separation the Veteran reported being in excellent health condition, and that he was not taking any medication. The Veteran's hypertension was not compensably disabling within a year of his separation on November 18, 1991. The Veteran has not presented any competent evidence to the contrary, and therefore, the preponderance of the evidence is against the claim. Accordingly, entitlement to service connection for hypertension, is not warranted, and the appeal must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Bilateral Hearing Loss Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or in at least three of these frequencies is 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A review of the Veteran's service treatment records reveals no complaints, findings, or diagnoses pertaining to a chronic hearing loss. His November 1991 separation examination included an October 1991 audiogram, which showed normal hearing in both ears. The audiogram also indicated that the Veteran was not routinely exposed to hazardous noise. The claimant indicated "Yes" as to whether he had ever experienced ear, nose, or throat trouble, but only indicated that he had a cyst on his tonsils in 1979. The post-service record shows that the Veteran meets the current disability requirement, as VA examinations show bilateral hearing loss of sufficient severity to warrant finding a hearing loss disability under 38 C.F.R. § 3.385. Significantly, however, because there is no competent evidence of a link between service and any current hearing loss, entitlement to service connection is not in order for the disability. While not dispositive of the issue of service connection, the Board may, and will, consider in its assessment the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. Maxson v. West, 12 Vet. App. 453 (1999). A February 2014 VA examination confirmed that the Veteran has bilateral hearing loss. While the examiner checked "Yes" when asked whether the Veteran's hearing loss at least as likely as not was caused by or a result of an event in military service, the box was clearly marked in error since the examiner specifically opined that a nexus could not be established between the Veteran's current hearing loss and his military service. The examiner commented that the Veteran's service medical records were negative of complaints of hearing loss, and noted the over twenty year gap between service and diagnoses of hearing loss. The Veteran was afforded another examination in February 2017, at which time the VA examiner concluded that there was no evidence to find that a bilateral hearing loss was etiologically related to service. The examiner referenced the Institute of Medicine's report titled Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), which stated there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. The examiner reviewed the claims file and the results of testing in arriving at the conclusion that it was less likely than not that the Veteran's hearing loss was caused by or the result of an event in military service. The examiner considered all pertinent and available medical facts in forming the opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). Notably, the Veteran does not assert that he experienced bilateral hearing loss while in service, or that a sensorineural hearing loss was compensably disabling within a year of November 18, 1991, nor does the record support such finding. No other evidence in the record addresses whether an etiological relationship exists between left ear hearing loss and in-service noise exposure. The Veteran has not submitted any competent evidence showing a relationship between any current hearing loss and service. As noted there is no competent evidence of compensable sensorineural hearing loss for VA purposes within one year after November 18, 1991. Indeed, the first complaint of hearing loss was during a September 2007 medical appointment. The first reported diagnosis of bilateral hearing loss was in February 2014, over 20 years following service separation, at which time the Veteran was diagnosed with hearing loss in both ears. 38 C.F.R. §§ 3.307, 3.309(a). The Board has considered the application of the concept of continuity of symptomatology in reviewing this claim, as hearing loss can be considered a "chronic disease." 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran does no assert, and the evidence does not demonstrate that he experienced a hearing loss for VA purposes since separation November 18, 1991. As stated above, a review of the medical records indicates that the first recorded complaint of hearing difficulties was during a September 2007 medical appointment. Therefore, the weight of the evidence is against a claim of continuity of symptomology, as the preponderance of the evidence is against finding a chronic hearing loss since the appellant left active duty service There was no medical diagnosis of hearing loss until February 2014, decades after service separation. That fact weighs against a finding that the Veteran had either a chronic bilateral hearing loss disability in service, or a compensably disabling sensorineural hearing loss within a year of discharge from active duty. Therefore, service connection may not be granted for a hearing loss based solely on lay statements submitted in support of the claim. The appellant has not submitted a competent medical opinion establishing an etiological link between his current hearing loss and his active service. The Veteran is competent to report (1) symptoms observable to a layperson, such as decreased hearing ability; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis. However, the Veteran is not qualified to make a competent opinion as to whether a hearing loss that manifested decades after service separation is related to in-service noise exposure, as this is too complex to be based on a lay observation alone. Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions regarding the etiology of his hearing loss are not competent evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359 (1995). The VA medical opinions are more persuasive because of the training and experience of the examiner. Those opinions are the most persuasive evidence. In sum, the competent medical evidence of record weighs against the Veteran's assertion that bilateral hearing loss is etiologically related to active service. The absence of any complaints or treatment for hearing loss in service, and the absence of any diagnosis, complaints, or treatment regarding hearing loss until decades after service, are probative evidence against the claim for service connection. Accordingly, as the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hearing loss the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Irritable Bowel Syndrome, Acid Reflux, Sleep Apnea The Veteran claims that he has irritable bowel syndrome, acid reflux, and sleep apnea that are related to his active service. As an initial matter, the Veteran's service treatment records do not reveal complaints, findings, or a diagnosis of either a stomach, intestinal, bowel, indigestion, or sleep disorder. Indeed, post-service, VA treatment records do not show complaints for any of the aforementioned conditions. The only evidence in support of the claim is the Veteran's belief that an irritable bowel syndrome, acid reflux, and sleep apnea are related to his service. While the Veteran is competent to describe certain symptoms associated with his conditions, such as pain, he is not competent to provide testimony regarding the etiology of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, n. 4 (Fed. Cir. 2007) (a layperson may be competent to identify a condition where the condition is simple, like a broken leg, but not if the condition is, for example, a type of cancer). Further, while not dispositive, the significant lapse in time between service and post-service medical treatment is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board finds that service connection cannot be granted for these disorders. There is no evidence of an irritable bowel syndrome, acid reflux, and sleep apnea disorders during service, and there is no competent medical evidence suggesting that a pertinent diagnosis is related to his military service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107 (b). ORDER As new and material evidence regarding the claim of entitlement to service connection for posttraumatic stress disorder has not been submitted the claim is not reopened. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for irritable bowel syndrome is denied. Entitlement to service connection for acid reflux is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for sleep apnea is denied. REMAND During the Veteran's February 2017 hearing, the Veteran revealed that he has been receiving Social Security disability benefits for mental health and headache disabilities. There is no indication that those records were obtained. As they are potentially relevant to the appeals of entitlement to service connection for an acquired psychiatric disorder, anxiety and depression, and entitlement to service connection for headaches these records must be requested. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO is directed to request records from the Social Security Administration pertaining to any request for disability benefits. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the remaining issues. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs