Citation Nr: 21039835 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-01 210 DATE: July 1, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened; to this extent only, the Veteran's appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a stomach disability is reopened; to this extent only, the Veteran's appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety and depression, is remand. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for residuals of prostate cancer is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for lumbar radiculopathy of the left leg is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a stomach disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for ear trouble and service connection for stomach trouble were last denied in September 2003 and September 1978 rating decisions respectively in part on the basis that there was no evidence of a current disability. 2. The Veteran did not file a notice of disagreement with the September 2003 and the September 1978 rating decisions or submit pertinent new evidence within one year, and the decisions became final. 3. Evidence received since the September 2003 and September 1978 rating decisions relates to unestablished facts necessary to substantiate the service connection claims for bilateral hearing loss and a stomach disability. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received, and the Veteran's claim for service connection for a stomach disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966. In October 2015, the Veteran died and appellant is his sister. Following the Veteran's death, the appellant requested to be substituted as the claimant for these claims. 38 U.S.C. § 5121A (2012). In a May 2017 letter, the RO informed the appellant that they had found her to be properly substituted as the claimant for the claims currently on appeal. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction of the claims file is currently with the RO in Montgomery, Alabama. The appellant has elected to be pro se (unrepresented) in her appeals currently before the Board. This claim was previously before the Board in March 2018, at which time it was remanded for further development. The March 2018 Board decision remanded the issue of entitlement to nonservice-connected (NSC) disability pension benefits. Following completion of the remand directives, the RO granted the Veteran's claim in April 2021. As such, it is no longer before the Board. New and Material Evidence A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the 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 means 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 previously of record, 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 evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral hearing loss disability Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a stomach disability Service connection for ear trouble and service connection for stomach trouble were initially denied in a September 1978 rating decision. The RO found that, despite one finding of otitis media in service, there was no further complaint and no evidence of tympanic membranes or evidence of a condition which would have caused insertion of plastic tubes in the ear drums. It also found that there was no ulcer disease or other stomach disability diagnosed in service and no significant condition shown on VA examination. A September 2003 rating decision again found that service connection was not warranted for hearing impairment on the basis that there was no evidence of a current disability. The evidence received since the September 2003 and September 1978 rating decisions includes VA treatment records indicating current diagnoses of bilateral hearing loss and peptic ulcers. The evidence is new, as it was not previously considered, and is material, as it pertains to unestablished facts of the claims, i.e., evidence of current diagnoses of bilateral hearing loss and peptic ulcers; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claims is appropriate. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, claimed as an anxiety disorder and depression 2. Entitlement to service connection for a headache disability 3. Entitlement to service connection for a bilateral eye disability 4. Entitlement to service connection for a sinus disability 5. Entitlement to service connection for a left arm disability 6. Entitlement to service connection for a right shoulder disability 7. Entitlement to service connection for a left shoulder disability 8. Entitlement to service connection for a low back disability 9. Entitlement to service connection for hypertension 10. Entitlement to service connection for coronary artery disease 11. Entitlement to service connection for gastroesophageal reflux disease (GERD) 12. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) 13. Entitlement to service connection for residuals of prostate cancer 14. Entitlement to service connection for a right leg disability 15. Entitlement to service connection for lumbar radiculopathy of the left leg As the Veteran's medical records establish a diagnosis or persistent symptoms of an acquired psychiatric disability, eye disability, headaches, sinus disability, left arm disability, right shoulder disability, left shoulder disability, low back disability, hypertension, coronary artery disease, GERD, COPD, residuals of prostate cancer, a right leg disability and left leg radiculopathy, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service, the Board finds that medical opinions are necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the appellant VA medical opinions so as to determine the etiology of the claimed disabilities. 16. Entitlement to service connection for bilateral hearing loss 17. Entitlement to service connection for a stomach disability The Veteran received a VA examination in August 1978 that noted a deformity of the gastric antrum and niche formation, and plastic tubes in the ear drums. The examiner, however, did not offer an opinion with regard to the etiology of these diagnoses. Furthermore, current medical evidence reflects that the Veteran has diagnoses of bilateral hearing loss and peptic ulcers. As such, the Board finds that a medical opinion is also warranted with respect to these claims. 18. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Regarding the claim for entitlement to a TDIU, this issue is intertwined with the claims remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) The matters are REMANDED for the following action: 1. Provide the appellant with a VA opinion to determine the nature and etiology of the Veteran's diagnosed acquired psychiatric disorders. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any of the Veteran's acquired psychiatric disorders had their onset in service or were otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed headache disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's headache disability had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed bilateral eye disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any of the Veteran's bilateral eye disabilities had their onset in service or were otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed sinus disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's sinus disability had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 5. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed left arm disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's left arm disability had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 6. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed left and right shoulder disabilities. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's left and right shoulder disabilities had their onset in service or were otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 7. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed low back disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's low back disability had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 8. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 9. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed coronary artery disease. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's coronary artery disease had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 10. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed GERD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's GERD had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 11. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed COPD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's COPD had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 12. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed residuals of prostate cancer. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's diagnosed residuals of prostate cancer had their onset in service or were otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 13. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed right leg disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's right leg disability had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 14. Provide the Veteran with a VA opinion to determine the nature and etiology of any diagnosed lumbar radiculopathy of the left leg disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's lumbar radiculopathy of the left leg disability had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 15. Provide the appellant with a VA opinion to determine the nature and etiology of any bilateral hearing loss. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any bilateral hearing loss had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 16. Provide the appellant with a VA opinion to determine the nature and etiology of any diagnosed stomach disability, to include peptic ulcers. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's stomach disability, to include peptic ulcers, had its onset in service or was otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.