Citation Nr: 21061646 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 19-17 770 DATE: October 4, 2021 ORDER New and material evidence having been received, the service connection claim for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. New and material evidence having been received, the service connection claim for a back condition is reopened. New and material evidence having been received, the service connection claim for gastroesophageal reflux disease (GERD) is reopened. New and material evidence having been received, the service connection claim for a sinus condition is reopened. New and material evidence having been received, the service connection claim for a respiratory condition is reopened. New and material evidence having been received, the service connection claim for scars is reopened. Entitlement to service connection for a bilateral hearing loss is denied. Entitlement to service connection for gout is dismissed. Entitlement to service connection for a bilateral eye condition is dismissed. Entitlement to service connection for hemorrhoids is dismissed. Entitlement to service connection for hiatal hernia is dismissed. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for GERD is remanded. Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for scars is remanded. Entitlement to service connection for a right rotator cuff condition is remanded. FINDINGS OF FACT 1. An unappealed May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's entitlement to service connections for tinnitus, a back condition, GERD, a sinus condition, a respiratory condition, and scars based on the determination that the evidence did not show links between the Veteran's claimed conditions and military service. 2. The evidence received since the May 2017 rating decision, to include a July 2020 Board hearing testimony regarding the symptoms and onsets of his claimed conditions, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the service connection claims for tinnitus, a back condition, GERD, a sinus condition, a respiratory condition, and scars. 3. There is approximate balance of positive and negative evidence on whether the Veteran's tinnitus had its onset in service. 4. The preponderance of the evidence is against finding that the Veteran has had sufficient hearing loss in either ear to qualify as a disability for VA compensation purposes during the pendency of the claim. 5. While his claim was in appellate status, the Veteran properly withdrew the issues of his entitlement to service connections for gout, a bilateral eye condition, hemorrhoids, and hiatal hernia. CONCLUSIONS OF LAW 1. The May 2017 rating decision, which denied the Veteran's claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 2. The evidence received since the May 2017 rating decision is new and material, and the service connection claim for tinnitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The May 2017 rating decision, which denied the Veteran's claim of entitlement to service connection for a back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 5. The May 2017 rating decision, which denied the Veteran's claim of entitlement to service connection for GERD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 6. The May 2017 rating decision, which denied the Veteran's claim of entitlement to service connection for a sinus condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 7. The May 2017 rating decision, which denied the Veteran's claim of entitlement to service connection for a respiratory condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 8. The May 2017 rating decision, which denied the Veteran's claim of entitlement to service connection for scars is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 9. The evidence received since the May 2017 rating decision is new and material, and the service connection claim for a back condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 10. The evidence received since the May 2017 rating decision is new and material, and the service connection claim for GERD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 11. The evidence received since the May 2017 rating decision is new and material, and the service connection claim for a sinus condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 12. The evidence received since the May 2017 rating decision is new and material, and the service connection claim for a respiratory condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 13. The evidence received since the May 2017 rating decision is new and material, and the service connection claim for scars is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 14. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). 15. The criteria for withdrawal of service connection claim for gout by the appellant have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). 16. The criteria for withdrawal of service connection claim for a bilateral eye condition by the appellant have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). 17. The criteria for withdrawal of service connection claim for hemorrhoids by the appellant have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). 18. The criteria for withdrawal of service connection claim for hiatal hernia by the appellant have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to July 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the Veteran's service connection claims for tinnitus, a back condition, GERD, a sinus condition, a respiratory condition, and scars were denied in a May 2017 rating decision. The Veteran did not appeal that decision, but filed a claim to reopen those claims in August 2018. In the August 2018 claim, the Veteran also filed new service connection claims for bilateral hearing loss and a right rotator cuff condition. In July 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. Reopening claims Reopening a claim for service connection which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to VA, and "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. 38 C.F.R. § 3.156(a) (2020). 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. Id. In the May 2017 rating decision, the RO previously denied the Veteran's service connection claims for tinnitus, a low back condition, GERD, a sinus condition, a respiratory condition, and scars based on the determination that the evidence did not show links between the Veteran's claimed conditions and military service. The Veteran did not appeal this decision timely, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). The Board finds that VA received new and material evidence since the prior final May 2017 rating decision in regard to the Veteran's service connection claims for tinnitus, a low back condition, GERD, a sinus condition, a respiratory condition, and scars. The evidence includes the Veteran's testimony during the July 2020 Board hearing on the symptoms and onsets of his claimed conditions. The evidence is new as it was not considered at the time of the prior final denial of the Veteran's claim. The Board finds that the new evidence is material as it reasonably substantiates the in-service incurrence and nexus elements, which were not established at the time of the prior denial. Therefore, the Veteran's service connection claims for tinnitus, a low back condition, GERD, a sinus condition, a respiratory condition, and scars are reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). Service Connection A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Tinnitus The Veteran underwent a VA audiological examination in April 2017, and the examiner noted the Veteran recurrent tinnitus. However, the examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran's hearing is within normal limits for both ears and no changes in hearing were noted while in service; thus, his tinnitus is not related to hearing loss or military noise. The examiner also stated that tinnitus has many other causes not related to hearing loss. During the July 2020 Board hearing, the Veteran testified that his tinnitus symptoms had its onset in service. The Veteran provided that he had suffered from acoustic trauma from being in close proximity to turrets firing during the drills aboard the U.S.S. Hawkins. He stated that he felt the concussion and noticed the ringing in his ears at the time. The Board finds the Veteran competent and credible to provide the onset of his tinnitus symptoms. Based on above, the Board finds that there is approximate balance of positive and negative evidence on whether the Veteran's tinnitus had its onset in service. Consequently, the Board resolves reasonable doubt in the Veteran's favor and finds that his entitlement to service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2020). On April 2017 VA audiological examination, the examiner reported that the Veteran has normal hearing for both ears. The Board notes that the Veteran's speech recognition scores which used the Maryland CNC test were 100 percent for both ears. Also, no other evidence in the record shows the Veteran's hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385. See also December 2009 Treatment Record (the Veteran had no hearing loss). Thus, the Board finds that the preponderance of the evidence is against finding that the Veteran has had sufficient hearing loss in either ear to qualify as a disability for VA compensation purposes during the pendency of the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). Dismissals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran testified during the July 2020 hearing that he wishes to withdraw his appeals on service connection claims for gout, a bilateral eye condition, hemorrhoids, and hiatal hernia. See July 2020 Hearing Transcript, at 9, 24, 28, 29. Therefore, there remain no allegations of errors of fact or law for appellate consideration for those issues. Accordingly, the Board does not have jurisdiction to review the appeals on service connection claims for gout, a bilateral eye condition, hemorrhoids, and hiatal hernia, and they are dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). REASONS FOR REMAND 1. Back condition The record documents the Veteran's history of lower back pain and lumbar disc degeneration. The Veteran testified during the July 2020 Board hearing that he sees a chiropractor once a month for his back issues. He also testified that he had injured his back in service while performing construction duties and carrying heavy items, such as shells and lumbar. The Veteran provided that his back condition has been bothering him since he left service. The Board finds the Veteran competent and credible to provide his in-service injury and ongoing symptoms. In light of above, the Board finds that a remand is necessary to afford the Veteran a medical examination to determine the nature and etiology of his current back condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. GERD The evidence shows the Veteran's history of GERD diagnosis. The Veteran testified that he is currently taking a prescription medication for GERD. He also stated that he was treated for a stomach condition during his active duty service. As such, the Board finds that affording the Veteran a medical examination to determine the nature and etiology of his current GERD condition is necessary in order to make a fully informed decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Sinus and respiratory conditions The Veteran contends that his current sinus and/or respiratory condition is related to his postnasal drip that he had experienced all throughout his service. The Veteran testified that he sought treatments for postnasal drip during his active duty service and was put on a medication until separation. In this regard, the Board notes that the Veteran's service treatment record (STR) includes his complaints of nasal congestion and coughing. See e.g., January 14, 1974, January 16, 1974, and January 10, 1977 STRs. The Veteran also testified that he has been having sinus issues since service. The Board notes that the Veteran underwent a VA examination for sinus conditions in May 2017. On May 2017 VA examination, the examiner noted the Veteran's diagnosis of chronic sinusitis, but provided a negative etiology opinion. However, the examiner's opinion was confined to whether the Veteran's condition is related to Shipboard Hazard and Defense. Thus, the Board finds that new medical examinations should be provided to the Veteran in order to determine the nature and etiology of the Veteran's current sinus and respiratory conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Scars The Veteran testified that he received scars in his knee after an injury from hitting a piece of metal sticking out when he was serving aboard the U.S.S. Hawkins. Also, the Veteran provided that the Veteran had to get stitches on his head twice for hitting his head on the ship. The Board notes that a treatment for a laceration on the Veteran's right knee on the U.S.S. Hawkins was documented in his STR. See February 18, 1974 STR. Based on above, the Board finds that a medical examination for scars should be obtained prior to final adjudication of the matter. 5. Right rotator cuff condition The Veteran's right shoulder condition is noted in his record. In regard to an in-service incurrence of a right rotator cuff condition, the Veteran competently testified that he had injured his right rotator cuff during an active duty for training while lifting lumbar and performing other builder duties. The Veteran stated that he previously had his right rotator cuff repair, but the doctor did not repair all of the condition. However, the Board notes that the Veteran was not afforded a medical examination for his right rotator cuff condition. In order for the Board to make a fully informed decision, the Veteran should be afforded a medical examination for a right rotator cuff condition to determine his current diagnosis and its etiology prior to final adjudication of the matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are REMANDED for the following action: 1. As the Veteran indicated during the July 2020 Board hearing that there may be some outstanding treatment records related to his current service connection claims on appeal, the Agency of Original Jurisdiction (AOJ) should contact the Veteran and his representative to request their assistance in obtaining any outstanding treatment records from VA and private sources for the Veteran's claimed back condition, GERD, a sinus condition, a respiratory condition, scars, and a right rotator cuff condition. Any records requests and/or responses must be associated with the Veteran's electronic claims file. 2. To the extent possible, the AOJ should identify the periods of the Veteran's active duty for training as the Veteran contends an in-service right shoulder injury during an active duty for training. 3. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current back condition. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must opine whether the Veteran's current back condition is at least as likely as not (50 percent or greater probability) related to his active duty service, including the claimed back injury sustained while performing construction duties and carrying heavy items, such as shells and lumbar. The examiner is advised that the Veteran is competent to report his symptoms and history, and the examiner must acknowledge and consider such reports in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation. Also, the examiner must provide a complete written rationale for any opinion rendered. 4. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current GERD condition. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must opine whether the Veteran's current GERD condition is at least as likely as not (50 percent or greater probability) related to his active duty service or had its onset in active duty service. The examiner is asked to consider the Veteran's July 2020 hearing testimony on receiving a treatment (i.e., a pill) for a stomach condition while in active duty service. See July 2020 Hearing Transcript, at 24. The examiner must provide a complete written rationale for any opinion rendered. 5. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current sinus condition. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must opine whether the Veteran's current sinus condition is at least as likely as not (50 percent or greater probability) related to his active duty service or had its onset in active duty service. The examiner is asked to consider the Veteran's STRs and his July 2020 hearing testimony on receiving a continuous treatment for a sinus condition and postnasal drips in service. See e.g., January 14, 1974, January 16, 1974, and January 10, 1977 STRs. The examiner is advised that the Veteran is competent to report his symptoms and history, and the examiner must acknowledge and consider such reports in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation. Also, the examiner must provide a complete written rational for any opinion rendered. 6. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current respiratory condition. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner is asked to identify whether the Veteran has a current diagnosis of any respiratory condition. If so, the examiner must opine whether the Veteran's current respiratory condition is at least as likely as not (50 percent or greater probability) related to his active duty service or had its onset in active duty service. The examiner is asked to consider the Veteran's STR and his July 2020 hearing testimony regarding the Veteran experiencing postnasal drips throughout his service and his complaints of coughing documented in the STR. See e.g., January 14, 1974, January 16, 1974, and January 10, 1977 STRs. The examiner must provide a complete written rational for any opinion rendered. 7. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current scars. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must opine whether the Veteran's current scars are at least as likely as not (50 percent or greater probability) due to in-service injuries or otherwise related to his active duty service. The examiner must provide a complete written rational for any opinion rendered. 8. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current right rotator cuff condition. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner is asked to identify whether the Veteran has a current diagnosis involving his right rotator cuff. If so, the examiner must opine whether the Veteran's current right rotator cuff condition is at least as likely as not (50 percent or greater probability) due to an injury in active duty service, including any periods of active duty for training, or otherwise related to active duty service. The examiner must provide a complete written rationale for any opinion rendered. 9. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.