Citation Nr: 21032144 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-15 739 DATE: May 26, 2021 ORDER New and material evidence having been received, reopening of service connection for bilateral hearing loss is granted. Service connection for bilateral sensorineural hearing loss is granted. Service connection for arthritis of the lumbar spine is granted. REMANDED Entitlement to an increased disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an increased disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A February 2012 RO rating decision reopened and denied service connection for bilateral hearing loss, finding that the evidence did not support that hearing loss was related to in-service noise exposure. The Veteran did not file a timely notice of disagreement (NOD) following the February 2012 rating decision, and new and material evidence was not received during the one year appeal period. 2. New evidence received since the February 2012 rating decision pertains to a finding that a currently diagnosed bilateral sensorineural hearing loss may be related to in service loud noise exposure/acoustic trauma. 3. The Veteran is currently diagnosed with bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes. 4. The Veteran was exposed to loud noise (acoustic trauma) while in service. 5. The currently diagnosed bilateral sensorineural hearing loss is related to the in service loud noise exposure. 6. The Veteran is currently diagnosed with arthritis of the lumbar spine. 7. During service the Veteran injured the back while moving heavy furniture. 8. The Veteran experienced "continuous" symptoms since service separation of arthritis of the lumbar spine. CONCLUSIONS OF LAW 1. The February 2012 RO rating decision denying service connection for bilateral hearing loss became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the February 2012 rating decision is new and material to reopen service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a), 3.385. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1987 to September 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at a January 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Since the issuance of the March 2020 statement of the case (SOC), additional evidence has been received by the Board for which a waiver of initial RO consideration was provided in writing in a January 2021 brief from the Veteran's representative. 38 C.F.R. § 20.1304. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for bilateral hearing loss and arthritis of the lumbar spine, and remands the rating and TDIU issues on appeal for additional development, no further discussion of the duties to notify and assist is necessary. Service Connection Law and Regulation Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss, as an organic disease of the nervous system, and arthritis are chronic diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issues on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 1. Reopening Service Connection for Bilateral Hearing Loss A February 2012 RO rating decision reopened and denied service connection for bilateral hearing loss, finding that the evidence did not support that hearing loss was related to in-service noise exposure. The Veteran did not file a timely NOD following the February 2012 rating decision, and new and material evidence was not received during the one year appeal period. As such, the February 2012 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. New evidence received since the February 2012 rating decision supports that currently diagnosed bilateral sensorineural hearing loss may be related to in service loud noise exposure/acoustic trauma. Specifically, the Board received an October 2018 private opinion letter indicating that currently diagnosed hearing loss was more likely than not related to in-service combat-related noises. The Board finds such evidence to be new and material to warrant reopening of the issue of service connection for bilateral hearing loss. 2. Service Connection for Bilateral Hearing Loss The Veteran argues that bilateral hearing loss is due to in-service noise exposure. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. Per an October 2018 private treatment letter, Maryland CNC testing showed 80 percent speech discrimination in the left ear and 90 percent in the right ear, which falls within the level of hearing loss contemplated by the VA regulatory criteria. The private audiologist diagnosed the Veteran with bilateral sensorineural hearing loss. Next, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service. The Veteran's DD 214 and service personnel records reflect that during service the Veteran served as an antitank assault guided missileman and had service in the Persian Gulf. Loud noise exposure/acoustic trauma is consistent with such service. Having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the Veteran's currently diagnosed bilateral sensorineural hearing loss is related to the in-service loud noise exposure/acoustic trauma. As discussed above, during the course of this appeal VA received a private audiometric opinion letter in October 2018. Per the opinion letter, the private audiologist opined it at least as likely as not that currently diagnosed bilateral sensorineural hearing loss was due to in-service noise exposure. In rendering this opinion, the private audiologist explained that the Veteran's duties as an antitank assault guided missileman caused routine exposure to gunfire, explosions, and loud engine noises. Further, the post-service noise exposure was minimal, and when around excessive noise post-service the Veteran would use appropriate hearing protective devices. The Veteran received a VA audiometric examination in February 2011. At the conclusion of the examination, the VA examiner opined it less likely than not that the Veteran's hearing loss was due to in-service noise exposure. This opinion was based upon the fact that the Veteran had a minimal threshold shift during service. Rather, it was more likely that post-service nose exposure as a government defense contractor was the cause of the hearing loss; however, as discussed above, per the October 2018 private opinion letter, the Veteran always wore appropriate hearing protection when around excessive noise during post-service employment. Further, pursuant to Hensley v. Brown, 5 Vet. App. 155, 159 (1993), 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. For these reasons, the Board does not find the February 2011 VA audiometric opinion to outweigh the October 2018 private opinion. In sum, the evidence of record reflects that the Veteran has a current diagnosis of bilateral sensorineural hearing loss, and that during service the Veteran was exposed to loud noise/acoustic trauma. A private audiologist in October 2018 opined that it was at least as likely as not that the currently diagnosed hearing loss is due to the in-service noise exposure. While a VA examiner in February 2011 opined to the contrary, the Board does not find that the February 2011 VA audiometric opinion outweighs the October 2018 private opinion; therefore, the evidence is at least in equipoise on the question of whether the currently diagnosed hearing loss is due to the in-service noise exposure. For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 3. Service Connection for a Back Disorder The Veteran asserts that a currently diagnosed back disorder is related to an in service lifting injury. It is the Veteran's contention that symptoms of a back disorder have continued from service separation to the present. Initially, the Board finds that the Veteran is currently diagnosed with arthritis of the lumbar spine. Such diagnosis can be found throughout the record, including in the reports from February 2015 and January 2019 VA back examinations. Next, the Board finds that during service the Veteran injured the back while moving heavy furniture. At the January 2021 virtual Board hearing, the Veteran credibly testified to injuring the right shoulder and back while moving a 200 pound metal desk during service. Review of the service treatment records reflect that during service the Veteran was diagnosed with right shoulder strain following an injury while lifting heavy furniture in August 1991. While the Veteran was not specifically diagnosed with a back injury at that time, service treatment records from August 1991 and September 1991 reflect that the Veteran did complain of back pain following the heavy lifting injury. When considering the other lay and medical evidence of record, the Board finds that the in-service heavy furniture lifting injury injured both the right shoulder and the back in August 1991. Finally, having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced "continuous" symptoms since service separation of arthritis of the lumbar spine to meet the requirements for presumptive service connection for the chronic disease of arthritis. See 38 C.F.R. § 3.303(b). As discussed above, service treatment records reflect that during service the Veteran complained of, and sought treatment for, back pain following a heavy furniture lifting injury in August 1991. While the Veteran was not noted to have a back disorder at the time of the July 1992 service separation examination, as there is no corresponding report of medical history included in the service treatment records, it is unclear whether the Veteran advanced having back pain at the time of service separation. VA treatment records from November 2011 reflect that the veteran complained of, and sought treatment for, back pain. Per the report from a December 2011 VA GERD/Persian Gulf examination, the Veteran conveyed having "arthritis/low back pain" that had its onset during service in 1991. The Veteran received a VA back examination in February 2015. At that time the Veteran advanced having back pain following an in-service future moving injury. Following that injury, the Veteran had back pain off and on throughout the years that was not severe enough to warrant seeking treatment from a physician. Per the examination report, the VA examiner explained that a computed tomography (CT) report from 2010 showed arthritis in the lumbar spine. While a negative service connection opinion was rendered by the VA examiner, that opinion merely considered whether the Veteran's back pain was due to in-service hazardous environmental exposure, and no opinion was rendered concerning whether the lumbar spine arthritis was due to the in-service heavy furniture lifting injury. As such, the Board finds the opinion to be of no probative value to the instant decision. A new VA back examination was performed in January 2019. Again, the Veteran conveyed having injured the back while moving heavy furniture during service. Further, the Veteran advanced having progressively worsening pain since that injury. At the conclusion of the examination the VA examiner opined it less likely than not that the back arthritis was related to service; however, the Board does not find this opinion to be adequate. Per the opinion report, the VA examiner appears to base the negative opinion on the fact that the Veteran denied having back pain on two occasions in 2010, and the fact that there was no medical evidence of record prior to 2010 of a back disability. Such opinion ignores the fact that 1) the Veteran had previously made lay statements indicating that the pain came and went, so the Veteran very well may not have been experiencing pain on those two occasions; and 2) per the February 2015 VA examination, CT imaging showed lumbar spine arthritis in 2010, which indicates that the arthritis had started developing and was present some time prior to 2010. Further, it does not appear that the VA examiner considered the history of back pain symptoms from the time of the in service lifting injury to the present. For these reasons, the Board finds the January 2019 VA opinion to be of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). VA received a lay statement from the Veteran dated January 2021. Per the statement, the Veteran conveyed informing a VA physician in February 1993, approximately five months after service separation, that he had ongoing pain in the low back near the hips. While the Board does not have any VA treatment records for the period on or about 1993, as the instant decision grants service connection for lumbar spine arthritis, which is a complete grant as to this issue, remand to attempt to obtain the outstanding February 1993 VA treatment record is unnecessary. Finally, at the time of the January 2021 virtual Board hearing, the Veteran credibly testified to having symptoms of pain in the lumbar spine from the time of the in service heavy furniture lifting injury to the present. While the pain was relatively minor at rest, the pain would flare-up with activity. The Veteran testified to treating the pain symptoms with over-the-counter medications until the symptoms had worsened to such a point that VA treatment was necessary. The Veteran is currently diagnosed with arthritis of the lumbar spine. Throughout the course of this appeal, in various lay statements and medical records, the Veteran has credibly advanced injuring the back while lifting heavy furniture during service, which is supported by the service treatment records, and that back disability symptoms have been present and progressively worsened from service separation to the present. This evidence is sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of a back disability since service separation that was later diagnosed as arthritis of the lumbar spine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous joint pain since service). Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran had symptoms of a back disability during service and experienced "continuous" symptoms since service separation of arthritis of the lumbar spine. As such, the criteria for presumptive service connection for arthritis of the lumbar spine under 38 C.F.R. § 3.303(b) based on "continuous" post service symptoms have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Finally, the evidence of record indicates that the Veteran may be diagnosed with other back disorders, to include degenerative disc disease (DDD). Where a veteran is diagnosed with multiple back/spinal disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service connected arthritis of the lumbar spine from any other back/spinal disorders. As such, the Board has attributed all disability symptomatology and functional impairment to the now service connected arthritis of the lumbar spine, and the RO should consider all of the Veteran's back symptomatology and functional impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is also warranted for any other back disorders. REASONS FOR REMAND 4. Increased Disability Rating for GERD 5. Increased Disability Rating for PTSD A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran last received VA GERD and PTSD examinations in January 2019. At the January 2021 virtual Board hearing, the Veteran testified to worsening GERD and PTSD symptoms since the last examinations. Further, VA has also received additional medical evidence indicating that the symptoms may have worsened since January 2019. As such, the Board finds remand for a new VA GERD and PTSD examinations to be warranted. The Board notes that it received a private PTSD disability benefits questionnaire (DBQ) dated January 2021. While the Board has considered this examination report, the Board still finds remand for a new VA examination to be necessary due to contractions in the private DBQ. First, while the private DBQ lists the Veteran as having symptoms of suicidal ideation, at the January 2021 virtual Board hearing, the Veteran testified that, while he did have suicidal ideation in 2001, he did not have suicidal ideation during the relevant rating period on appeal. Second, per the private DBQ, the private examiner opined that the Veteran has total occupational and social impairment, which would normally warrant a 100 percent total disability rating under the PTSD rating criteria; however, as the private examiner also found that the Veteran had no symptoms commonly associated with the 100 percent rating criteria, it is unclear what the rationale is for this opinion. It appears more likely to the Board that the private examiner was rendering a TDIU opinion concerning employability rather than an opinion as to the actual level of social and occupational impairment displayed by the Veteran as contemplated by the VA rating criteria. To alleviate this confusion, the Board will ask the VA examiner on remand to review and discuss the private examiner's findings in January 2021. 6. TDIU During the course of this appeal, to include in testimony at the January 2021 virtual Board hearing, VA has received evidence indicating that the Veteran may be unemployable due to the service-connected PTSD. As such, the Board finds that the issue of entitlement to a TDIU has been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to a TDIU has not previously been addressed, the Board remands the issue to the Agency of Original Jurisdiction (AOJ) for initial adjudication. The aforementioned matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning GERD and PTSD. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's GERD and PTSD, not already of record, for the period from January 2020. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiner(s), who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. GERD The VA examiner should report the extent of all GERD disability symptoms in accordance with VA rating criteria. PTSD (Continued on the next page) The VA examiner should report the extent of all mental health disability symptoms in accordance with VA rating criteria. Further, after completing the examination, the VA examiner should review the report from the January 2021 private DBQ and discuss any findings made by the private examiner that conflict with the VA examiner's findings. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.