Citation Nr: 21067233 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-14 116 DATE: November 3, 2021 ORDER Service connection for tinnitus is granted. The claim for entitlement to service connection for stomach ulcer is reopened. REMANDED Entitlement to service connection for stomach ulcer is remanded. Entitlement to a compensable rating for status post fifth digit of right hand is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus onset in service. 2. The claim for service connection for stomach ulcer was previously denied in a July 2008 rating decision. The Veteran did not appeal that decision and no new evidence pertinent to that claim was received within one year from the date that notice of the determination was mailed to the Veteran. 3. New evidence received since the time of the final July 2008 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for stomach ulcer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The July 2008 rating decision denying service connection for stomach ulcer is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. Evidence submitted to reopen the claim of entitlement to service connection for stomach ulcer is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1993 to March 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for tinnitus The Veteran contends he is entitled to service connection for tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). At his July 2021 Board hearing the Veteran testified that he was around a lot of noise, including gunfire, in service. He stated that ever since he separated from service, he has been having issues with his hearing and ears ringing. A February 1994 in-service audiogram includes a remark that the Veteran is routinely exposed to hazardous noise. On VA examination in November 2014, the examiner stated that the Veteran reported having periodic tinnitus twice a month for the past 15 years. The examiner opined that the Veteran's tinnitus is less likely than not caused by military noise exposure as the Veteran's entry and separation audiograms do not show significant changes in hearing threshold during military service. A June 2021 private treatment record notes the Veteran's report of ringing in the ears "for years" with recent worsening. The Board finds the Veteran is competent and credible to report experiencing tinnitus since service. Thus, giving him the benefit of the doubt, the Board finds that service connection for tinnitus as having onset in service is warranted. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for stomach ulcer A June 2006 rating decision denied service connection for a stomach ulcer. The Veteran filed a timely notice of disagreement with the June 2006 decision and a statement of the case was issued in July 2007. A rating decision was issued on the same date in July 2007. The Veteran submitted a VA Form 9 in October 2007 which was not timely. The AOJ informed the Veteran that the Form 9 was not timely in a November 2007 letter and the Veteran did not appeal that determination. As such the June 2006 and July 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The Veteran filed a claim to reopen which was denied in a July 2008 rating decision. The Veteran did not file a notice of disagreement and no new and material evidence was submitted within one year of the rating decision. As such, the July 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to VA. 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 record reflects that the Veteran submitted private treatment records relating to his stomach, lay statements, and underwent a VA stomach examination in November 2014. The Board thus finds that new and material evidence has been submitted to reopen the Veteran's claim. REASONS FOR REMAND 1. Entitlement to service connection for stomach ulcer is remanded The Veteran contends that his currently diagnosed chronic stomach ulcer condition onset in service, although it was not correctly diagnosed at that time. Service treatment records include a June 1994 record in which the Veteran complaint of stomach pain and headaches. He reported 24 hours of pain with vomiting, stomach cramps, and an inability to defecate. In June 1995 he again sought medical treatment reporting diarrhea. He was diagnosed with an atypical stomachache. After service, in July 1997, a private treatment record reflects that the Veteran sought treatment reporting abdominal pain at night for the past year and a half. He was diagnosed with peptic ulcer disease. A May 2007 private treatment record notes the Veteran's continued complaint of abdominal pain waking him up at night. He was referred for an esophagogastroduodenoscopy in June 2008 and diagnosed with esophagal reflux, duodenitis, and chronic duodenal ulcer. In November 2014, the Veteran underwent a VA examination. The examiner opined that the Veteran's chronic duodenal ulcer was less likely than not incurred in service. The examiner stated that the Veteran's 1994 and 1995 stomach issues noted in his service treatment records were acute and treated and that the Veteran's in-service complaints are not consistent with his complaints after service. The examiner did not discuss the July 1997 treatment record's notation that at that time the Veteran reported that his abdominal symptoms had been present for a year and a half, which would put the onset during the Veteran's active service. Further, the Veteran has suggested in statements and at his July 2021 Board hearing that his abdominal symptoms during service were the same as what he continued to experience after service. The Board finds that the Veteran should be afforded a new VA examination and an opinion obtained that considers his lay statements and the July 1997 private treatment record. 2. Entitlement to a compensable rating for status post dislocation of fifth digit of right hand is remanded The Veteran was most recently afforded a VA examination of his finger in November 2014. The examiner noted the Veteran's report of pain and cramping in his hand after extended use but indicated that examination was normal and that it would be mere speculation to opine as to additional limitation in terms of degrees of range of motion loss due to pain or use during a flare-up. At his July 2021 Board hearing, the Veteran testified that his finger has become more painful since his last VA examination. He reported that he experiences stiffness, loss of strength, limitation of motion, and locking in his hand. As the Veteran's testimony suggests a worsening of his condition, the Board finds a new examination is warranted. Further, the Board notes that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a new VA examination in connection with his stomach ulcer claim. The examiner should opine whether it is at least as likely as not that the Veteran's currently diagnosed stomach condition, to include esophagal reflux, duodenitis, and chronic duodenal ulcer, onset in or is causally related to his service. A full rationale for all opinions expressed must be provided. The examiner should discuss the Veteran's lay statements regarding what symptoms he experienced in service and the July 1997 private treatment record noting nighttime abdominal pain for the past year and a half. (Continued on the next page) 2. Arrange for the Veteran to undergo a new VA examination of his service-connected fifth digit of right hand disability. The examiner should specify the nature and severity of all symptoms related to the service-connected condition. The examiner should further obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment during a flare-up from the Veteran if unobservable on examination. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.