Citation Nr: 21011954 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-17 952 DATE: March 3, 2021 ORDER The application to reopen the claim for service connection for arthritis is granted. The application to reopen the claim for service connection for gastroesophageal reflux disorder (GERD) is granted. The application to reopen the claim for service connection for actinic keratosis (also claimed as skin cancer) is denied. Service connection for tinnitus is granted. Service connection for post-traumatic stress disorder (PTSD) is granted. Service connection for an eye condition is denied. REMANDED Service connection for back pain is remanded. Service connection for arthritis is remanded. Service connection for ulcers is remanded. Service connection for GERD is remanded. Service connection for severe fatigue is remanded. FINDINGS OF FACT 1. An October 2008 rating decision denied the Veteran’s claims of entitlement to arthritis, GERD and actinic keratosis/skin cancer. 2. The Veteran did not appeal the October 2008 rating decision and new and material evidence was not added to the record within a year of the decision. Accordingly, the October 2008 decision is final. 3. The Veteran has submitted new and material evidence in support of the claims for service connection for arthritis and GERD. 4. The Veteran has not submitted new and material evidence in support of the claim for service connection for skin cancer. 5. The Veteran’s tinnitus was incurred during service. 6. The Veteran has a current diagnosis of PTSD related to in-service stressors. 7. The Veteran’s eye condition is not related to service. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied service connection for arthritis, GERD and actinic keratosis/skin cancer is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. The criteria for reopening the Veteran’s claims for service connection for arthritis and GERD are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for reopening the Veteran’s claim for service connection for skin cancer are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for an eye condition are not met. 38 U.S.C. §§ 1110, 1131, 5107 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and May 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The claim for service connection for tinnitus was previously before the Board, in January 2020. The Board denied the claim and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand (JMR) entered into by the Veteran and VA, CAVC remanded the claim for clarification of the April 2018 VA medical opinion. The Board notes that the Veteran requested a hearing before the Board in his VA Form 9 appealing the claims for service connection for arthritis, GERD, skin cancer, PTSD, back pain, ulcers, severe fatigue, and an eye condition, but withdrew that request in correspondence to the Board in February 2020. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e). New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claims seeking entitlement to service connection for arthritis, GERD and skin cancer were denied in an October 2008 rating decision on the grounds that there was no evidence of an association between the conditions and the Veteran’s service, including herbicide exposure. The Veteran did not file a notice of disagreement to the October 2008 rating decision and new and material evidence was not submitted within a year of the decision. As a result, the October 2008 rating decision is final. 38 C.F.R. § 20.1103. The evidence for service connection for arthritis, GERD and skin cancer considered at the time of the October 2008 rating decision consisted of the Veteran’s service treatment records (STRs) and VA treatment records from September 2007 to September 2008. The evidence received since the October 2008 rating decision includes updated VA treatment records, lay statements from the Veteran regarding the origin of his injuries and medical literature discussing the connection between stress and digestive problems. This evidence is new because it was not previously submitted. The Board finds that the evidence is material with respect to the claims for arthritis and GERD. The Veteran’s lay statement regarding the equipment he carried during his service in Vietnam relates to the unestablished element of an in-service event for the arthritis claim. The medical literature regarding the connection between stress and digestive problems relates to whether the Veteran’s GERD is related to his now service-connected PTSD. The Board thus concludes that the requirements of 38 C.F.R. § 3.156(a) have been met and the claims for service connection for arthritis and GERD are reopened. The Board finds the evidence submitted since the October 2008 rating decision redundant or cumulative of the evidence of record at the time of the October 2008 rating decision with respect to the claim for service connection for skin cancer. The only additional evidence of record with respect to skin cancer is a continuing diagnosis, which existed at the time of the October 2008 rating decision. The Veteran has not provided any further evidence tending to support his claim of entitlement to service connection for skin cancer, such as a new contention, medical literature or a medical opinion attributing the condition to service. While 38 C.F.R. § 3.156(a) creates a low threshold, and does not require new and material evidence as to each previously unproven element of a claim, the Veteran has not presented material evidence with respect to any previously unproven element of the claim for service connection for skin cancer. Accordingly, the application to reopen the claim for skin cancer is denied. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Tinnitus Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, including organic diseases of the nervous system 38 C.F.R. §§ 3.307, 3.309(a). Tinnitus is classified as an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant’s separation from service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). The Veteran has a current disability of tinnitus as reflected in the December 2015 and April 2018 VA examinations. The December 2015 VA examiner noted that the Veteran had tinnitus but also noted a lack of information as to when the condition started. The Veteran reported to the April 2018 examiner that he has had constant tinnitus “since the late 1960s.” VA treatment records confirm that the Veteran has been diagnosed with tinnitus. The Veteran is competent to testify as to his observable symptoms, such as ringing in his ears. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). With respect to the second element, the December 2015 VA examiner noted it was highly probable that the Veteran had hazardous noise exposure in service based on his military occupational specialty (MOS) as an infantryman. The Veteran submitted an October 2019 lay statement noting that as a machine gunner serving in Vietnam he was exposed to gunfire and explosions in firefights, as well as noise from aircraft engines. Military personnel records confirm that the Veteran served as an infantryman in Vietnam and served in combat. The remaining question is whether the Veteran’s current tinnitus is related to his in-service hazardous noise exposure. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s statements and determine whether they support a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). If they do, such statements are sufficient to establish service connection. Id. The Board finds that the Veteran’s lay statements are sufficient to establish service connection for tinnitus in this instance. As noted, the Veteran reported to the April 2018 VA examiner that he has had constant tinnitus since the late 1960s. In his October 2019 statement the Veteran reported that he experienced ringing in his ears in Vietnam and that the has had it since that time. The Board finds the Veteran’s statements competent and credible. Further, the statements also amount to evidence of continuity of symptomatology, which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). The Board acknowledges the negative nexus opinion offered by the December 2015 VA examiner. The Board notes, however, that the examiner misquoted the Veteran’s VA treatment records in reaching the conclusion that the Veteran denied having tinnitus. Moreover, the Veteran explained in his October 2019 statement that he has always had ringing in his ears since service, but he was unaware that it was called tinnitus or that it was a disability. The negative nexus opinion offered by the April 2018 VA examiner is not entitled to probative weight. As noted in the JMR, the examiner based the opinion on the lack of any reported tinnitus in service, but failed to acknowledge the Veteran’s statement that he has experienced constant tinnitus since his time in service. Although the JMR directed the Board to obtain a new medical opinion appropriately considering the Veteran’s report, the Board concludes that the Veteran’s competent and credible statements and his explanation as to his previous denials outweigh the negative nexus opinions and are sufficient to support service connection for tinnitus without an additional medical opinion. Affording the Veteran the benefit of the doubt, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. PTSD Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred and medical evidence establishing a link between current symptomology and the in-service stressor. 38 C.F.R. § 3.304(f). Here, the record reflects that the Veteran has a current diagnosis of PTSD, satisfying the first element of service connection. Specifically, the Veteran submitted an August 2018 private psychological evaluation report noting that the Veteran was diagnosed with PTSD based on the DSM-V. A PTSD diagnosis by a mental health professional must be presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of symptomatology and the sufficiency of the stressor absent compelling evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (holding that, in the absence of evidence to the contrary, medical professionals are presumed to be competent to render the diagnoses they render). The Board acknowledges that the December 2015 VA examiner concluded that the Veteran did not have a PTSD diagnosis. However, given the conflicting diagnoses, the evidence is at least in equipoise on the issue. The Veteran is entitled to have reasonable doubt decided in his favor and, accordingly, the Board finds that the Veteran has a current PTSD diagnosis made in accordance with the DSM-V. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Cohen, supra. The Board notes that the existence of a credible in-service stressor has been conceded. Specifically, the RO conceded in the February 2016 rating decision and November 2017 Statement of the Case (SOC) that the Veteran experienced a stressful event in service. The Veteran’s military personnel records confirm that he earned the combat infantry badge, among other decorations, for his combat service in Vietnam. The Veteran has submitted lay statements describing the stressful experiences he had while engaged in combat in Vietnam. The record also includes competent evidence of a link between the Veteran’s in-service stressors and the current PTSD diagnosis. The August 2018 private psychological report noted that it was as likely as not that the in-service events described by the Veteran caused his current psychological disability. The Board finds the opinion entitled to probative weight as it is based on a review of the relevant records and an interview and testing of the Veteran. There are no contradictory opinions of record as the December 2015 VA examiner did not offer a nexus opinion. After thorough review of the evidence of record, the Board concludes that the weight of the evidence is in favor of a finding that the Veteran’s current PTSD is related to service. Accordingly, entitlement to service connection for PTSD is warranted. Eye Condition The Veteran is able to establish a current disability for an eye condition. VA treatment records note the Veteran’s complaints of eye problems. Specifically, the Veteran complained of left eye discomfort in February 2016. The Veteran is thus able to establish the current disability element for an eye condition. The Veteran’s STRs are silent for any diagnosis or treatment related to the Veteran’s eyes. Although the Veteran was presumptively exposed to herbicide agents during his service in Vietnam, he has not submitted any objective medical evidence or medical treatises that would support, or even suggest, a correlation between herbicide exposure and the Veteran’s later occurrence of an eye condition. The Veteran is competent to relate his observable symptoms, but there is no indication that he is competent to provide an opinion as to the etiology of his eye condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (a veteran is competent to provide a diagnosis of a simple condition, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994). Nor does the Board find any basis to obtain a medical opinion as there is no evidence beyond the Veteran’s claim to suggest that his eye condition may be related to service, to include his exposure to herbicides. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, service connection for an eye condition is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Back Pain and Arthritis The Veteran has current diagnoses of chronic back pain and arthritis in the VA treatment records. In support of his claim, the Veteran submitted a statement claiming that his conditions started while in service and noting that, as part of his combat duties, he was required to carry all of his equipment for days at a time, including an M60 machine gun. No VA examination has been conducted with respect to the Veteran’s chronic back pain and arthritis. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide the claim. See 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. See McClendon, 20 Vet. App. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms and events. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that Veteran’s statements regarding his back pain and arthritis starting in service and his explanation of his duties are sufficient to warrant a VA examination to determine the nature and etiology of his back pain and arthritis conditions. McClendon, supra. Ulcers and GERD Service connection may be granted where a disability is proximately due to or the result of an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Here VA treatment records confirm that the Veteran has current diagnoses of ulcers and GERD. The Veteran contends that his digestive problems are related to the stress caused by his PTSD. In support of his claims, the Veteran has submitted medical literature suggesting a relationship between stress and digestive problems. The Veteran as not yet been afforded a VA examination in connection with his claims for service connection for ulcers and GERD, to include as secondary to his PTSD. The Veteran is service connected for PTSD as a result of his decision, and the Board finds the Veteran’s submissions sufficient to warrant an examination to determine the nature and etiology of the Veteran’s ulcers and GERD, including whether the conditions are related to his service-connected PTSD. See McClendon, supra. Fatigue The Veteran’s VA treatment records confirm ongoing complaints of fatigue. Specifically, the Veteran complained of fatigue in connection with his rheumatoid arthritis during rheumatology appointments in December 2011, June 2012, January 2013 and May 2016. The Veteran also complained of fatigue during an October 2016 Agent Orange examination. At that time, the Veteran was diagnosed with rheumatoid arthritis, cervical spondylosis, GERD, COPD, mild hearing loss, tinnitus and vertigo. The August 2018 addendum to the private psychological report noted the Veteran’s complaints of fatigue related to his disturbed sleep caused by nightmares and flashbacks. The Veteran also complained of fatigue while on active service. An entry in his STRs from April 1969 documents his in-service complaint of “somewhat fatigue.” The Veteran has not been afforded a VA examination for his severe fatigue claim. Nor is there any other medical opinion evidence of record. Based on the foregoing, there is evidence of a current disability, as well as evidence of an in-service occurrence of fatigue. As the competent medical evidence is insufficient to adjudicate the claim, remand is necessary to provide the Veteran a VA examination to determine the nature and etiology of the Veteran’s fatigue. McClendon, supra. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. After completing the development in item 1, schedule the Veteran for a VA examination to determine the nature and etiology of his back pain and arthritis. The claims file (and a copy of this remand) must be made available to and be reviewed by the examiner and all necessary tests conducted. The examiner is requested to opine as to whether it is at least as likely as not that the Veteran’s back pain or arthritis was incurred in service or is otherwise related to service? The examiner should specifically address the Veteran’s statements regarding his duties in service and their effect on his back and arthritis conditions. 3. After completing the development requested in item 1, schedule the Veteran for a VA examination to determine the etiology of his ulcers and GERD. The claims file (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination and all necessary tests should be conducted. The examiner is requested to opine as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s ulcers or GERD arose during service or is otherwise related to service, including his exposure to herbicides? Please explain why or why not. (b.) If not related to service, is it at least as likely as not that the Veteran’s ulcers or GERD were caused by his service-connected PTSD? Please explain why or why not, specifically addressing the medical literature submitted by the Veteran on the connection between stress and digestion. (c.) If not caused by PTSD, is it at least as likely as not that the Veteran’s ulcers or GERD have been worsened beyond normal progression by his service-connected PTSD? Please explain why or why not, specifically addressing the medical literature submitted by the Veteran. In proffering this opinion, the examiner must determine whether the Veteran’s PTSD caused any incremental increase, even transient, in his ulcers or GERD, regardless of permanence. (d.) If the examiner finds that the Veteran’s ulcers or GERD has been worsened beyond normal progression (aggravated) by his service-connected PTSD, please attempt to quantify the degree of aggravation beyond the baseline level of ulcers or GERD that is attributable to PTSD. 4. After completing the development in item 1, schedule the Veteran for a VA examination to determine the nature and etiology of any fatigue, to include whether the condition is separate and distinct from the Veteran’s rheumatoid arthritis or his service-connected PTSD. If a separate disability is identified, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or more) that fatigue was incurred in or related to active duty. The examiners are advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A complete rationale for the examiners’ opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiners cannot provide the requested opinions without resorting to speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiners must indicate whether any opinions could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.