Citation Nr: 1808083 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for GERD. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for a bilateral hearing loss disability. 5. Entitlement to service connection for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to June 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the Board in July 2017. A transcript of this hearing is of record. The issue of entitlement to service connection for IBS is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In an unappealed September 2007 rating decision, the RO denied service connection for GERD because the evidence failed to demonstrate that the Veteran suffered from a GERD that was related to the Veteran's service or service-connected low back disability. 2. Evidence received since the September 2007 rating decision includes information that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for GERD. 3. Resolving all doubt in the Veteran's favor, the Veteran's GERD is causally related to his active service. 4. In an unappealed April 2008 rating decision, the RO denied service connection for a bilateral hearing loss disability because the evidence failed to demonstrate that the Veteran suffered from a bilateral hearing loss disability that had its onset during or was related to the Veteran's service. 5. Evidence received since the April 2008 rating decision includes information that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hearing loss disability. 6. Resolving all doubt in the Veteran's favor, the Veteran's bilateral hearing loss disability is causally related to his active service. CONCLUSIONS OF LAW 1. The September 2007 rating decision that denied service connection for GERD became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received after the September 2007 rating decision is new and material to reopen a claim of entitlement to service connection for GERD. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.303. 3. The criteria to establish entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The April 2008 decision that denied service connection for a bilateral hearing loss disability became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. Evidence received after the April 2008 rating decision is new and material to reopen a claim of entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.303. 6. The criteria to establish entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS GERD The Board is required to determine whether new and material evidence has been received before it can reopen a claim. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, VA shall reopen and review an adjudicated claim when a veteran submits new and material evidence that raises a reasonable possibility of substantiating the adjudicated claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the veteran's claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service connection for GERD was denied in a September 2007 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from GERD as a result of his service, or as secondary to his service-connected low back disability. The Veteran filed a notice of disagreement with this decision, but did not file a formal appeal (VA Form 9) following the issuance of a Statement of the Case (SOC). The September 2007 rating decision became final. In May 2012, the Veteran filed a new claim of entitlement to service connection for GERD. In September 2012, the RO denied reopening of the Veteran's GERD claim because the RO did not receive new and material evidence which established "any causal relationship between [the Veteran's] claimed gastroesophageal reflux disease (GERD) and military service." The Veteran's September 2012 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young v. Shinseki, 22 Vet. App. 461, 468 (2011). New evidence submitted after the September 2007 rating decision (the prior final denial which addressed the claim on its merits) includes the Veteran's July 2017 testimony before the Board, and an August 2017 medical opinion letter authored by the Veteran's VA physician which indicates that the Veteran suffers from GERD as a result of medications prescribed to treat his service-connected low back disability. The author of the August 2017 medical opinion letter addressed the relationship between the medications prescribed to treat the Veteran's low back disability and his GERD, and opined that "[a]ccording to the medical evidence[,] these problems are related." This evidence is new because it was not previously of record. The Board finds that the new evidence is also material because it raises a reasonable possibility of substantiating the claim. Therefore, this new and material evidence is sufficient to reopen the previously denied claim of entitlement to service connection for GERD. See 38 C.F.R. § 3.156. The medical evidence of record, including an August 2002 VA examination report, indicates that the Veteran suffers from GERD. The Veteran's July 2017 testimony before the Board, along with the August 2017 medical opinion letter, indicates that the Veteran suffers from GERD as a result of medication taken to treat his service-connected low back disability. The Board notes that the record does not contain an examination report which discusses whether the Veteran suffers from GERD as a result of his service or service-connected low back disability. Resolving reasonable doubt in the Veteran's favor, service connection for GERD as secondary to the Veteran's service-connected low back disability is warranted. See 38 C.F.R. §§ 3.102, 3.303, 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Given the favorable outcome of this decision, no conceivable prejudice to the Veteran could result from the Board's adjudication of the above re-opened claim without benefit of RO reconsideration. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Bilateral Hearing Loss Disability As described above, the Board is again required to determine whether new and material evidence has been received before it can reopen a claim. See Barnett, 83 F.3d at 1383-1384. Service connection for a bilateral hearing loss disability was denied in an April 2008 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from a bilateral hearing loss disability as a result of his service. The Veteran filed a notice of disagreement with this decision, but did not file a VA Form 9 following the issuance of an SOC. [The Board notes that the record indicates that the SOC was mailed to the wrong address, in part due to the Veteran's incarceration. It appears that the SOC was re-mailed to an address provided by the Veteran, and that the Veteran's representative also received the SOC.] The April 2008 rating decision became final. In May 2012, the Veteran filed a new claim of entitlement to service connection for a bilateral hearing loss disability. In September 2012, the RO again denied the Veteran's bilateral hearing loss disability claim because the examiner responsible for an August 2012 VA examination provided to assess whether the Veteran suffered from a hearing loss disability as a result of his service opined that there was no medical link between the Veteran's hearing loss and his service. The Veteran's September 2012 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young, 22 Vet. App. at 468. New evidence submitted after the April 2008 rating decision (the prior final denial which addressed the claim on its merits) includes the Veteran's July 2017 testimony before the Board and the August 2012 VA examination (discussed below). This evidence is new because it was not previously of record. The Board finds that the new evidence is also material because it raises a reasonable possibility of substantiating the claim. Therefore, this new and material evidence is sufficient to reopen the previously denied claim of entitlement to service connection for a bilateral hearing loss disability. See 38 C.F.R. § 3.156. The medical evidence of record, including an August 2012 VA examination, indicates that the Veteran suffers from a bilateral hearing loss disability. [The Board notes that the August 2012 examination report describes the Veteran's hearing as "normal," but the results recorded in the report indicate that the Veteran suffers from impaired hearing within the meaning of 38 C.F.R. § 3.385]. The Veteran's January 1997 Report of Medical History at separation does not indicate that the Veteran suffered from a bilateral hearing loss disability, nor does his January 1997 Report of Medical Examination at separation. The Veteran's service records do indicate that he served as both a rifle range coach and small arms weapon instructor, and the record contains persistent complaints of hearing loss following the Veteran's service. Resolving reasonable doubt in the Veteran's favor, service connection for a bilateral hearing loss disability is warranted. See 38 C.F.R. §§ 3.102, 3.303, 3.304; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). ORDER The request to reopen the previously denied claim of entitlement to service connection for GERD is granted. Entitlement to service connection for GERD is granted. The request to reopen the previously denied claim of entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. REMAND The medical evidence of record, including an April 2004 VA treatment record, indicates that the Veteran suffers from IBS, and an August 2005 VA treatment record notes that the Veteran reported suffering from symptoms of IBS since service. The Veteran states that he suffers from IBS as a result of medication prescribed to treat his service-connected low back disability. The Veteran's January 1997 Report of Medical History at separation and January 1997 Report of Medical Examination at separation do not contain a diagnosis of IBS or reports of symptoms linked to IBS. During a July 2017 hearing before the Board, the Veteran described suffering from symptoms linked to IBS during service, but stated that he did not remember seeking medical treatment for these issues. The Board finds that an examination is necessary to determine whether the Veteran suffers from IBS as a result of his service, to include as secondary to his service-connected low back disability. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). The RO should also obtain any VA treatment records not already contained in the Veteran's claims file. See 38 U.S.C. § 5103A. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records not already of record. 2. Forward the claims file, including a copy of this Remand, to an appropriate medical examiner for a VA examination to assess whether the Veteran suffers from IBS as a result of his service, to include as secondary to his service-connected low back disability. After reviewing the complete record, the examiner is asked to provide an opinion as to the following: (a) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran suffers from IBS that first manifested during his service or was otherwise directly related to his service? (b) If question (a) is answered in the negative, please state whether is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran suffers from IBS that was caused by or is otherwise related to his service-connected low back disability. (c) If questions (a) and (b) are answered in the negative, please state whether is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's IBS was aggravated by (i.e., any worsening of the disability beyond its natural progression) the Veteran's service-connected low back disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and his representative with a supplemental statement of the case and allow him an opportunity to respond. The Veteran has the right to submit additional evidence and argument on remanded matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). Remanded matters must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs