Citation Nr: 21073724 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-17 001 DATE: December 10, 2021 ORDER Entitlement to an effective date prior to April 28, 2016 for the award of a 20 percent evaluation for bilateral hearing loss is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a high cholesterol disorder, to include hypercholesterolemia, is denied. Entitlement to service connection for diabetes mellitus, to include on a secondary basis, is denied. Entitlement to service connection for traumatic brain injury (TBI) or residuals of a head injury is granted. REMANDED Entitlement to service connection for asthma is remanded. Whether a timely substantive appeal was filed in response to a May 29, 2014 statement of the case (SOC) issued by the agency of original jurisdiction (AOJ) is remanded. Entitlement to a rating in excess of 70 percent prior to April 28, 2016 for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is remanded. Entitlement to a rating in excess of 70 percent from April 28, 2016 for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. On April 28, 2016, the Veteran filed a claim for an increased rating for bilateral hearing loss; for the year prior to November 9, 2018, it was not factually ascertainable that the Veteran's bilateral hearing loss warranted a disability rating in excess of 20 percent. 2. The Veteran's hypertension did not have its onset in service or within one year of service nor is it etiologically related to active service. 3. High cholesterol, including hypercholesterolemia, is not a disability for which VA compensation is payable. 4. The Veteran's diabetes mellitus did not have its onset in service or within one year of service and is not etiologically related to service; nor is it caused or aggravated by a service-connected disability. 5. Resolving all reasonable doubt in favor of the Veteran, his TBI is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for an effective date before April 28, 2016, for the award of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114(a), 3.400. 2. The criteria for service connection for hypertension, claimed as high blood pressure, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for service connection for a high cholesterol disorder, to include hypercholesterolemia, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 5. The criteria for TBI or residuals of a head injury have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1999 to February 2005, and he earned the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the record reflects that the Veteran was scheduled for a May 2020 Board hearing for the issues related to GERD, asthma, and TBI; however, in April 2020, the Veteran, through his attorney, withdrew his hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d), (e). Consequently, the Board has merged this appeal stream with his other active Legacy appeal stream thereby taking jurisdiction of all outstanding issues on appeal. New evidence has been received in the form of VA treatment records, Social Security Administration (SSA) records, and a VA examination for his GERD since the April 2017 Statement of the Case (SOC) and April 2019 SOC. Generally, a Supplemental Statement of the Case (SSOC) must be issued by the Agency of Original Jurisdiction (AOJ) when new evidence is received. An exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1304(c). The Board finds that this evidence is duplicative of evidence that was before the RO at the time that the SOCs were issued with respect to the service connection issues, and the evidence is not pertinent to the issue of entitlement to an earlier effective date for the award of the increased rating for bilateral hearing loss. Accordingly, the Board may proceed with the adjudication of these claims as a SSOC is not required. 38 C.F.R. § 19.37(b). However, with respect to the remaining issues, a SSOC is required and will be addressed in the REMAND portion below. 1. Entitlement to an effective date prior to April 28, 2016 for the award of a 20 percent evaluation for bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher disability rating prior to April 28, 2016 for his bilateral hearing loss. Unless specifically provided otherwise, the effective date for an increased rating is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Determining an appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran was awarded service connection for his hearing loss in a June 2005 rating decision, and he was notified of this decision in July 2005. The Veteran submitted private medical records addressing hearing loss in September 2008 and December 2009; however, these records appear to be addressing the hearing acuity of his son. The next relevant correspondence received from the Veteran was on April 28. 2016, in which he requested an increased evaluation due to needing hearing aids. Based upon this claim for increase, the Veteran was afforded a VA examination in June 2016, and an August 2016 rating decision awarded a 20 percent disability rating for his bilateral hearing loss, effective April 28, 2016. Based upon a review of the record, there is no evidence that the Veteran submitted a claim, formal or informal, seeking an increased rating for his bilateral hearing loss prior to April 28, 2016. Consequently, the April 28, 2016 correspondence is the first claim seeking an increased rating for his bilateral hearing loss in the record. Furthermore, the Veteran has not provided any medical treatment records noting any complaints or other indication that his service-connected bilateral hearing loss had worsened in severity during the one-year period prior to his increased rating claim. Therefore, a higher rating is not warranted prior to April 28, 2016 for bilateral hearing loss. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, the Board finds that the preponderance of the evidence is against the Veteran's appeal seeking an earlier effective date for a 20 percent disability rating for his bilateral hearing loss, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for hypertension is denied. The Veteran contends that he has hypertension as a result of active service. He specifically asserts that he struggled with high blood pressure since he was hospitalized during his service in Japan in 2001. Initially, the Board notes that the Veteran has not had a VA examination for his hypertension; however, the Board finds that an examination is not necessary because, as described in further detail below, the evidence does not establish an event, injury or disease in service or continuity of symptoms since service. Therefore, it is insufficient to trigger VA's duty to assist by providing a medical opinion regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1. A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis related to hypertension during his active service. Although STRs note a few, intermittent elevated blood pressure readings, diastolic blood pressure readings throughout the Veteran's active service, including at the time of his separation, were generally below 90mm and systolic blood pressure readings were generally below 160mm. See 38 C.F.R. § 4.104, DC 7101, Note 1. Post-service medical records reflect that the Veteran had hypertension since as early as 2008. A statement from the Veteran's treating physician, received in April 2016, notes that, in pertinent part, the Veteran had a history of hypertension and had been treated by him since August 2010. After a review of the evidence, the Board finds that service connection is not warranted for hypertension. The Veteran was not diagnosed or treated with hypertension during his active military service. In this regard, the Board acknowledges that the Veteran had intermittent elevated blood pressure readings during service; however, no diagnosis of hypertension was provided at that time, nor was hypertension or high blood pressure noted in his subsequent active service medical records. Indeed, at the time of his separation, his blood pressure was well below a diastolic of 90 mm or systolic of 160 Additionally, there is no evidence to suggest that the Veteran continued to have elevated blood pressure since his service separation so as to establish continuity of symptomatology. The Veteran has not indicated that he monitored his blood pressure, and there is no competent medical evidence suggesting that the Veteran was treated after service for hypertension until several years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board notes that, although not a dispositive factor, the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Id. The Board has also considered the statement by the Veteran's treating physician; however, while this demonstrates that the Veteran has a current disability, it does not provide a nexus opinion relating his hypertension to his active service. There is no medical opinion of record indicating that the Veteran's hypertension was incurred in or caused by his active service, nor is there any competent medical or lay evidence demonstrating continuity of symptoms since service. Thus, the record contains no probative evidence that the Veteran's hypertension is related to active service, other than the Veteran's own assertion. The Veteran is considered competent to report the observable manifestations of his claimed disability. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that such assertions purport to establish a diagnosis or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for a high cholesterol disorder, to include hypercholesterolemia, is denied. The Veteran contends that his hypercholesterolemia is due to his active military service. STRs are silent for any complaints, treatment, or diagnosis related to high cholesterol. A March 2008 post-service VA treatment record notes that the Veteran's cholesterol levels were satisfactory. Subsequent records are largely silent with regard to high cholesterol except to indicate that the Veteran should try and maintain a low fat and low cholesterol diet. Not until an October 2014 record was hyperlipidemia noted, and the Veteran was counseled on risks of uncontrolled cholesterol. A statement from the Veteran's treating physician, received in April 2016, notes that, in pertinent part, he had been treating the Veteran since August 2010 and the Veteran had a history of hypercholesterolemia. Initially, the Board notes that the Veteran has not had a VA examination for his high cholesterol; however, the Board finds that an examination is not necessary because, as described in further detail below, the evidence does not establish a current disability for VA purposes. Therefore, it is insufficient to trigger VA's duty to assist by providing a medical opinion regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). After a review of the evidence, the Board finds that service connection is not warranted for a high cholesterol disorder, to include hypercholesterolemia. A finding of high blood pressure is a laboratory result and not, in and of itself, a disability for VA compensation purposes. 61 Fed. Reg. 20440, 20445 (May 7, 1996). Nevertheless, disabilities related to high cholesterol levels may be service connected. Here, however, there is no evidence that the Veteran's high cholesterol is the result of a disability or has led to the development of a disability for which service connection could be granted. The Board stresses that service connection can only be granted for a disability resulting from disease or injury. See 38 U.S.C. §§ 1110, 1131. A disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Allen v. Brown, 7 Vet. App. 439 (1995). Here, the evidence of record does not suggest that the Veteran's high cholesterol, on its own, causes him any impairment of earning capacity. Additionally, the Veteran has not alleged, and the record does not suggest, that he has a diagnosed disability due to high cholesterol. In the absence of proof of a current disability for which service connection may be granted, the Veteran's claim for service connection for high cholesterol, including hypercholesterolemia, must be denied. 38 U.S.C. § 1110; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 4. Entitlement to service connection for diabetes mellitus is denied. The Veteran contends that his diabetes mellitus is related to his active service. He reported that he was diagnosed with diabetes in 2012 after his service-related problems caused him to limit his activity. STRs are silent for any complaints, treatment, or diagnosis for diabetes mellitus or any related symptoms. A March 2008 VA treatment record notes that the Veteran was seen as a new patient. He had labs performed, the results of which indicated that he had high glucose levels requiring further work-ups to rule out diabetes. Subsequent records indicate that the Veteran was not diabetic until a September 2012 emergency room record, which indicates that the Veteran was diabetic; his blood glucose level was 93. An October 2012 emergency room record notes that the Veteran was diabetic, and his blood glucose level was 103. Later medical records note treatment for diabetes. A statement from the Veteran's treating physician, received in April 2016, notes that, in pertinent part, the Veteran had a history of diabetes and had been treated by him since August 2010. In a statement from the Veteran, received in January 2021, the Veteran indicated that he was diagnosed with diabetes in 2012 and his doctor said that his disabilities, service-connected, and nonservice-connected, played a major part in limiting his activities, not being able to properly exercise, weight gain and loss, and becoming unhealthy. Initially, the Board notes that the Veteran has not had a VA examination for his diabetes mellitus; however, the Board finds that an examination is not necessary because, as described in further detail below, the evidence does not establish an event, injury or disease in service or continuity of symptoms since service. Therefore, it is insufficient to trigger VA's duty to assist by providing a medical opinion regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). After a review of the evidence, the Board finds that service connection is not warranted for diabetes mellitus. As noted above, the Veteran was not diagnosed or treated with diabetes during his active military service, and the Veteran does not contend otherwise. There is no competent medical evidence suggesting that the Veteran was treated after service for diabetes until many years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board notes that, although not a dispositive factor, the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Id. The Board has also considered the statement by the Veteran's treating physician; however, while this demonstrates that the Veteran has a current disability, it does not provide a nexus opinion relating his diabetes to his active service. There is no medical opinion of record indicating that the Veteran's diabetes was incurred in or caused by his active service, nor is there any competent medical or lay evidence demonstrating continuity of symptoms since service. Thus, the record contains no probative evidence that the Veteran's diabetes is related to active service, other than the Veteran's own assertion. The Veteran is considered competent to report the observable manifestations of his claimed disability. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that such assertions purport to establish a diagnosis or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Furthermore, to the extent that the Veteran appears to raise a secondary theory of entitlement for his diabetes mellitus, the Board notes that there is no evidence of record that supports this assertion. The Board acknowledges that the Veteran is competent to restate what is told to him by his doctor. Nevertheless, the Board notes that the Veteran stated that his doctors indicated that nonservice-connected disabilities played a role in his development of diabetes, and service connection is not warranted on a secondary basis to nonservice-connected disabilities. Further, even if doctors told the Veteran that a service-connected disability limited his activity, there is no indication in the record that his diabetes mellitus was caused by that limited activity or otherwise related to a service connected disability. Thus, to the extent that the Veteran attempts establish service connection for diabetes mellitus as secondary to service connected disabilities based solely on his own statements, as noted above, he is not shown to be competent to render etiology opinions, and the Board therefore affords this statement no probative value. 38 C.F.R. § 3.310. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Entitlement to service connection for TBI is granted. The Veteran contends that he has a TBI due to his active service. Specifically, the Veteran contends that he fell off a cargo freight in the Middle East during Operation Enduring Freedom. STRs reflect a normal enlistment examination, without any complaints of headaches, dizziness, loss of memory, or periods of loss of consciousness. STRs are silent for any complaints, treatment, or diagnosis related to any head injury. He complained of dizziness in an October 1999 STR showing treatment for an upper respiratory infection. STRs reflects that the Veteran was involved in a motor vehicle accident in July 2004, in which he injured his knee and his back. The records reflect that he received ongoing treatment for his back after this accident; however, he denied any head injury and loss of consciousness. His separation examination is silent for any indication that he suffered a head injury or had any symptoms that may be associated with a head injury. In this regard, the Board notes that the Veteran's separation Report of Medical History notes that he denied any periods of loss of consciousness; it also notes that he experienced panic attacks and headaches due to stress, and he had an accident in August 2004 in which he hit his knee on the dashboard. The Report of Medical History further notes that the Veteran endorsed dizziness, noting that he lost his balance when bending down. Military personnel records (MPRs) reflect that the Veteran's MOS was that of a Small Arms Marksmanship Instructor. MPRs indicate that, from March 2002 to November 2002, his duties included supervising personnel in operations of the Armory, and he was deployed during Operation Enduring Freedom. A March 2008 VA treatment record notes that the Veteran was seen as a new patient. He reported that he fell during training in service and had the "wind knocked out of him." He had a positive TBI screening with reported symptoms of sensitivity to bright light, irritability, headaches, and sleep problems. Referral for further evaluation at the TBI clinic was made. The Board notes, however, that, based on a review of his subsequent treatment records, it is unclear whether the Veteran attended any such appointment at that time. A December 2013 VA examination notes that the Veteran had a TBI. The Veteran reported that his TBI symptoms started in 2001. He reported that while climbing on cargo boxes, he fell 10 inches onto the ground hitting his head. He indicated that he felt dizzy but had no loss of consciousness. Then, while in Japan in 2003, he was playing football and another player landed on his head; he indicated that he was taken off duty. The Veteran reported receiving a diagnosis of traumatic brain injury in 2004 while in Japan. He described his current symptoms as including headaches, dizziness, balance/walking problems, vision difficulty with headaches causing instability, and hallucinations. The examination notes that the Veteran was exposed to one blast in 2001 that was severe enough to knock him down or cause injury. The examiner opined that the Veteran's TBI was at least as likely as not incurred in or caused by active service. The examiner explained that a February 2005 record indicates that the Veteran had an accident in August 2004; while climbing on cargo boxes, he fell 10 inches onto the ground hitting his head. Therefore, he is at least as likely to have TBI from job related trauma. After a review of the evidence, the Board finds that service connection for a TBI is warranted. The December 2013 VA examiner provided a diagnosis of TBI. Therefore, the first element, a current disability, has been met. Concerning an in-service event, illness, or injury, the Veteran has reported symptoms stemming from an event in service, in which he fell off cargo boxes and hit his head during his deployment. Military personnel records reflect the Veteran's MOS was a Small Arms Marksmanship Instructor, with foreign service during Operation Enduring Freedom. His duties at this time included supervising personnel in operations of the Armory. The Board acknowledges that there is no evidence of treatment for a head injury in the Veteran's STRs. However, the Veteran is a combat Veteran. In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154 (b) (2012); Libertine v. Brown, 9 Vet. App. 521 (1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). As the events reported by the Veteran are consistent with the circumstances and conditions of his service, the combat injury is presumed. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Regarding the nexus, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's TBI is related to his active service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The unfavorable evidence in this case consists of the lack of treatment records for a TBI after separation from active service. The favorable evidence of record consists of the December 2013 VA examiner's opinion that the Veteran's TBI was relate to his described in-service event during his deployment, the Veteran's credible account of the event he experienced during service, and his report of continuity of symptoms since service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based on the above, the Board finds that the evidence is, at least, in equipoise as to whether the Veteran's TBI was caused by or otherwise etiologically related to his active military service. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for a TBI is warranted. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. The Veteran contends that service connection for asthma is warranted as directly related to service because his asthma symptoms began while he was serving in Japan. The Veteran's enlistment examination shows a normal lung examination; no symptoms or diagnosis of asthma was noted. The Veteran denied having asthma on his associated enlistment Report of Medical History. An August 1999 STR notes that the Veteran received treatment for sub-acute sinusitis mild early bronchitis. A July 2001 STR notes treatment for chest congestion and a productive cough; an assessment of upper respiratory infection was noted. A September 2002 STR notes that the Veteran reported difficulty breathing for one month. A September 2002 STR notes that the Veteran had a childhood history of asthma; he indicated that when he moved to Japan in 1999, he noted an increase in seasonal allergies, allergic rhinitis, and allergic sinusitis symptoms such as runny nose, purulent mucus drainage, and cough. The record notes that the Veteran's symptoms included shortness of breath and "chest tightness", which the provider noted may represent an asthma exacerbation. The Veteran was prescribed an inhaler for his cough and chest tightness, Allegra to "block the effects of environmental allergens or pollutants", and a third mediation for his runny nose and congestion, all of which were to be used as needed. A March 2004 STR reflects pulmonary function test results showing FVC, FEV1, and FEV1/FVC ratios within normal limits, noting only reduced FEF results. However, no diagnosis was noted. A January 2005 separation examination notes a normal lung evaluation; the examination does, however, note that the Veteran had an upper respiratory infection, viral, that was self-limiting. In his January 2005 Report of Medical History, the Veteran endorsed having asthma, shortness of breath, and use of an inhaler; however, the record notes that he no longer used the inhaler. A February 2011 general VA examination notes that the Veteran reported onset of asthma symptoms, such as shortness of breath and hyperventilation, while serving in Japan. He reported symptoms of shortness of breath "which is part of his anxiety". The Veteran had not used an inhaler since 2009. He had a pulmonary function test while in Japan in 2001 or 2002. Physical examination revealed breath sounds that were clear to auscultation bilaterally; respiratory movements were even and without use of accessory muscles; no wheezing was noted. The examiner noted a February 2011 pulmonary function test which revealed mild airflow limitation with complete reversibility following bronchodilators; lung volumes were normal; diffusing capacity was normal. The examiner noted a diagnosis of asthma. No service-connection opinion was provided. An April 2014 VA examination notes a diagnosis of asthma. The Veteran reported that his symptoms began in 2000; he reported difficulty breathing. He also reported that he was diagnosed with asthma in 2001 and in 2010. He indicated that his current symptoms included chest tightness, wheezing, seasonal allergies, and rapid breathing. The examiner opined that the Veteran's asthma, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or disease. The examiner reasoned that, after revieing the medical evidence, the examiner was unable to opine beyond mere speculation that the asthma was less likely than not aggravated by the claimed in-service injury, event, or disease. It is consistent with medical records. The examiner noted that the February 2011 pulmonary function test showed mild asthma; no medical records for asthma were found in service. Thus, the examiner was unable to find the onset of his asthma, as no enlistment records were available for review. Therefore, the examiner was unable to opine beyond speculation that asthma was less likely than not aggravated beyond its natural progression by service. An April 2016 statement from the Veteran's treating physician notes, in part, that the Veteran had asthma. The physician indicated that he has been treating the Veteran since August 2010. A December 2016 correspondence from the Veteran's attorney notes that the Veteran's asthma did not exist prior to his service enlistment, and the Veteran was seeking service connection on a direct basis. Further, the Veteran's attorney suggests that the examination was inadequate because the examiner did not review all of the Veteran's service records, including the separation examination that notes asthma. The Veteran was afforded another VA examination in April 2017, which notes a diagnosis of asthma. The Veteran reported that his symptoms began in 2001, while he was in Japan. He indicated that he was tested and given a rescue inhaler; he reported that he still used his inhaler and now used a nebulizer. The examiner opined that the Veteran's asthma, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that there were no medical records for any aggravation noted during service; the Veteran was not on any asthma medicine upon retirement from service. His pulmonary function test was normal at present. The examiner opined that it was less likely than not that the Veteran's current asthma, which existed prior to service, was aggravated beyond its normal progression by his military service. A review of the record reflects that further development is necessary prior to appellate consideration. The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1110, 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Here, the Veteran's enlistment examination is silent for any respiratory disorder, to include asthma. An associated Report of Medical History notes that the Veteran denied having asthma at service enlistment. Thus, as asthma was not noted upon service enlistment, the presumption of soundness attaches. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Both VA examinations, noting that the Veteran had a current asthma disability, provided only aggravation opinions, indicating that the Veteran's asthma pre-existed service. Neither examiner, however, provided any explanation or support for the finding that his asthma pre-existed service. Indeed, the April 2014 examiner apparently made this finding without considering the Veteran's enlistment examination. Although neither examiner specifically referenced the September 2002 STR, assuming that this record was the basis for the finding that asthma pre-existed service, the Board notes that there is no indication in the record, lay or medical, to support the statement that the Veteran had childhood asthma. Thus, to the extent that the examiners found that the Veteran had a pre-existing asthma disorder based solely on this September 2002 STR, the Board finds that this rationale is not sufficient to rebut the presumption of soundness. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the Board finds that a remand for a new VA opinion is necessary before the matter can be adjudicated. 2. Whether a timely substantive appeal was filed in response to a May 29, 2014 statement of the case (SOC) issued by the agency of original jurisdiction (AOJ) is remanded. 3. Entitlement to a rating in excess of 70 percent prior to April 28, 2016 is remanded. Service connection was granted for the Veteran's PTSD in a November 2009 rating decision; at this time, the Veteran was awarded a 30 percent evaluation, effective June 12, 2009. In August 2010, the Veteran filed a claim for an increased rating for his PTSD, which was denied in a March 2012 rating decision. The Veteran submitted a notice of disagreement (NOD) to this decision in December 2012, and in May 2014, the RO issued a SOC on this issue, which indicates that a copy was sent to the Veteran's former attorney. In February 2016, the Veteran's former attorney filed a Form 9 in response to the May 2014 SOC, indicating that the attorney did not receive proper notice of the SOC. The RO responded to the receipt of the VA Form 9 in a March 2016 correspondence, indicating only that a SOC had not yet been issued and the Form 9 was therefore premature. The Veteran disagreed with the March 2016 notice letter in a NOD received in June 2016. To date, the RO has not addressed the issue of whether the February 2016 VA Form 9 was timely. Thus, the Board is required to remand the matter for issuance of a statement of the case addressing the claim. See 38 C.F.R. § 19.9(c); see also Manlincon v. West, 12 Vet. App. 238 (1999). As the perfected issue of an earlier effective date for the award of a 70 percent disability rating for PTSD is inextricably intertwined with the issue of the timeliness of the February 2016 VA Form 9, the Board must remand that issue as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 4. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is remanded. 5. Entitlement to an evaluation in excess of 70 percent from April 28, 2016 for posttraumatic stress disorder (PTSD) is remanded. 6. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Following the issuance of the statement of the case (SOC) by the RO, additional evidence was received, including records from the Social Security Administration (SSA) upon VA's request for such records and a VA examination for the Veteran's GERD. The Board recognizes that, in an August 2019 correspondence from the Veteran's attorney, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of "all evidence submitted in support of the claim after the issuance of the Statement of the Case up to the date of the decision of the Board." However, it is unclear from the correspondence to which claim the Veteran's attorney was referencing as the Veteran has numerous claims on appeal. As such, in a September 2021 correspondence, VA requested a waiver of the evidence received since the case was certified to the Board; the Veteran was notified that he had 45 days to respond. No response from the Veteran or his attorney was received within the prescribed timeframe. Regarding relevant evidence, 38 C.F.R. § 19.37 states that a SSOC will be furnished to an appellant and his representative when additional pertinent evidence is received after a previous SOC has been issued, unless the additional evidence received duplicates evidence previously of record which was discussed in the prior SOC. In this case, pertinent rating information relating to the increased ratings claims on appeal was newly obtained by the RO and was not addressed in the last SOC. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. Moreover, the Veteran did not submit the evidence in question. Rather, this evidence was developed by VA in connection with his claims. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction (AOJ) receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare a SSOC reviewing that evidence. 38 C.F.R. § 19.31(b)(1). As such, in order to afford the Veteran his full procedural rights, on remand, the RO must consider and address all of the evidence of record including the SSA records in an appropriate SSOC. See 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician addressing the nature and etiology of the Veteran's asthma. The electronic claims file must be made accessible to the examiner. If an addendum opinion is not feasible, schedule the Veteran for a VA examination to determine the nature and etiology of his asthma. (a.) The examiner should opine as to whether it is clear and unmistakable (obvious and manifest) that asthma existed prior to service. In commenting on the significance, if any, of the 2002 STR wherein it is noted that the Veteran had a history of childhood asthma, the examiner is reminded that an opinion that the Veteran had a pre-existing asthma disability based solely on this record will be considered deficient. (b.) If the examiner finds that the Veteran clearly and unmistakably had an asthma disability prior to service, then the examiner should opine as to whether it is also clear and unmistakable that any such disability was NOT aggravated during service beyond its natural progression. (c.) The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that asthma had its onset in service or is otherwise etiologically related to service. (d.) The examiner must provide reasons for each opinion expressed with consideration given to all evidence of record, including his enlistment examination, the September 2002 record noting that the Veteran "may" have had an asthma exacerbation, and his in-service treatment for respiratory symptoms. 2. Issue a statement of the case addressing the issue of the timeliness of the Veteran's February 2016 VA Form 9, in light of the claims by the Veteran and his former attorney that they did not receive notice of the May 2014 SOC. Inform the Veteran that to complete the appellate process for this issue, he should submit a timely substantive appeal. If the Veteran perfects his appeal by filing a timely substantive appeal, the matter should be returned to the Board for further appellate review, if otherwise in order. 3. Furnish to the Veteran and his attorney an appropriate SSOC that includes a review of all evidence received since the April 2017 and April 2019 SOC, to include the SSA records, and any other new evidence submitted by the Veteran while the case is at the AOJ. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.