Citation Nr: 21040919 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-00 001A DATE: July 7, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a headache disability, is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for hypertension, is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for a disability manifested by swelling of the joints, is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for nerve damage of the bilateral lower extremities, is reopened, and to that extent only, the appeal is granted. Entitlement to a compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for residuals of removal of the gallbladder, claimed as due to contaminated water exposure at Camp Lejeune is remanded. Entitlement to service connection for a back disability, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. Entitlement to service connection for a headache disability, to include as secondary to service-connected residuals of a neck injury, degenerative joint disease of the cervical spine, also claimed as due to contaminated water exposure at Camp Lejeune, or in the alterative, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a disability manifested by shortness of breath, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. Entitlement to service connection for a disability manifested by swelling of the joints, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. Entitlement to service connection for nerve damage of the bilateral lower extremities, to include as secondary to a back disability and/or bilateral foot disability, is remanded. Entitlement to service connection for bilateral foot disability, to include as secondary to a back disability, also claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include as secondary to a disability manifested by shortness of breath, is remanded. Entitlement to an evaluation in excess of 50 percent for PTSD is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of a neck injury, degenerative joint disease of the cervical spine, is remanded. FINDINGS OF FACT 1. A March 2007 rating decision, in pertinent part, denied entitlement to service connection for headaches, hypertension, swelling of the joints and implicitly denied service connection for nerve damage of the bilateral lower extremities; the Veteran did not appeal these denials in a timely manner, and no new and material evidence was submitted within the appeal period as to these denials. 2. Evidence received since the final March 2007 rating decision is new, relates to an unsubstantiated issue necessary to substantiate the claim for service connection for a headache disability, hypertension, a disability manifested by swelling of the joints and nerve damage of the bilateral lower extremities, and raises a reasonable possibility of substantiating these claims. 3. Throughout the rating appeal period, the Veteran's service-connected bilateral hearing loss was manifested by no worse than level II hearing impairment in the right ear and no worse than level I hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The March 2007 rating decision rating decision which, in part, denied entitlement to service connection for headaches, hypertension, swelling of the joints and implicitly denied service connection for nerve damage of the bilateral lower extremities, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the March 2007 rating decision, the claims for service connection for a headache disability, hypertension,, a disability manifested by swelling of the joints and nerve damage of the bilateral lower extremities, are reopened. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156 (a), 20.1103. 3. The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1985 to February 1986, February 1986 to May 1986, June 1987 to November 1994, and from February 2003 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 (a headache disability, hypertension, a disability manifested by swelling of the joints, bilateral hearing loss, a back disability, a disability manifested by shortness of breath, bilateral foot disability, PTSD, and a cervical disability) and December 2015 (nerve damage of the bilateral lower extremities, a gall bladder disability, and an acquired psychiatric disorder other than PTSD) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2015, the Veteran, in part, filed a claim to reopen the claim for entitlement to service connection for a headache disability, a disability manifested by swelling of the joints, a back disability, a disability manifested by shortness of breath. The July 2015 rating decision, in part, denied these claims. Thereafter, in August 2015, the Veteran, in part, submitted an application to reopen these claims, which were again denied in a December 2015 rating decision. The Veteran submitted a January 2016 notice of disagreement (NOD), in part, as to these denials. Although the Veteran specified the January 2016 NOD pertained to the December 2015 rating decision, such was also timely as to the July 2015 rating decision, which is more favorable to the Veteran. Following issuance of a statement of the case (SOC) in August 2016, a substantive appeal was timely received in September 2016, within 60 days thereafter. As such, the July 2015 rating decision is the rating decision on appeal for a headache disability, a disability manifested by swelling of the joints, a back disability, a disability manifested by shortness of breath. Additionally, although the Agency of Original Jurisdiction (AOJ) has treated the Veteran's claims for entitlement to service connection for a back disability, for a disability manifested by shortness of breath, and bilateral foot disability, as previously denied claims requiring new and material evidence to reopen, these issues must be considered by the Board on a de novo basis. The Veteran did not appeal March 2007 rating decision, which in pertinent part, denied a claim for low back pain and shortness of breath, or a January 2014 rating decision, which denied in part, a bilateral foot disability, and no new and material evidence was received within these appeal periods. However, under 38 C.F.R. § 3.156 (c)(1), any time after VA issues a decision on a claim and receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. In this regard, relevant service treatment records were received subsequent to the March 2007 rating decision as to the denials for a back disability and a disability manifested by shortness of breath. Specifically, in September 2016, the Veteran submitted additional service treatment records, which included July 2003 service records which documented low back pain, which arguably supports the Veteran's contention of a chronic in-service back disability, as previously only a single October 2003 service record indicated back pain. Additionally, a July 2003 service record, also submitted by the Veteran in September 2016, documented a diagnosis of other dyspnea and respiratory abnormality, and an August 2003 service record, obtained by VA in January 2015, noted chest pain and shortness of breath, which arguably supports the Veteran's contention of a chronic in-service disability as previously only a single February 2005 service record indicated chest pain with shortness of breath. Similarly, relevant service treatment records were received subsequent to the January 2014 rating decision as to the denial of bilateral foot disability. Specifically, in January 2015 VA obtained additional service records, which included a December 2009 service record which documented, in part, the Veteran had a permanent profile secondary to plantar fasciitis with flat feet. Thus, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) apply to these claims, and thus these claims has been recharacterized as listed on the title page. The record discloses that the Veteran is service-connected for PTSD but also in August 2015 he submitted, in part, an application for nervousness as secondary to shortness of breath. In this regard, the Board finds that it is appropriate to characterize the claim for nervousness as broadly as claim for any acquired disability other than PTSD, as multiple psychiatric diagnoses other than PTSD are of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Significantly, the AOJ denied the claim on the merits in the December 2015 rating decision but addressed the claim as a claim to reopen in the August 2016 SOC based on a finding that the claim was denied in a March 2007 rating decision. However, review of the March 2007 rating decision does not reflect that an acquired psychiatric disorder other than PTSD was considered and as PTSD is manifested by symptoms distinct from that of psychiatric disabilities other than PTSD, and distinct VA regulations are applicable for a claim for service connection for PTSD, the claim for service connection for PTSD must be considered without regard to finality of March 2007 rating decision and the threshold question of whether new and material evidence has been received need not be addressed. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Thus, appeal is properly characterized entitlement to service connection for an acquired psychiatric disorder other than PTSD. Similarly, in August 2015 the Veteran submitted, in part, an application for nerve damage both as secondary to back pain and secondary to bilateral foot condition. The AOJ denied the claim on the merits in the December 2015 rating decision but addressed the claim as a claim to reopen in the August 2016 SOC based on a finding that the claim was denied in a March 2007 rating decision. In a November 2005 application the Veteran claimed, in part, tingling of hands and lower back and pain from lower back down to legs, and as discussed below, the March 2007 rating decision, in part, denied the claims for tingling of the hands and back and back pain and implicitly denied the claim for a bilateral leg disability. Thus, threshold question of whether new and material evidence has been received need be addressed. Further, the while the Board is unclear as the specific body part the Veteran is claiming with respect to nerve damage, claimed both as secondary to back pain and secondary to bilateral foot condition, the Board notes that the Veteran's increased rating claim for the Veteran's service-connected cervical disability encompasses a related disability of the bilateral upper extremities, and as service connection for a back disability and bilateral foot disability are also separately on appeal, the Board finds this claim is best characterized as whether new and material evidence has been received to reopen entitlement to service connection for nerve damage of the bilateral lower extremities. Since the most recent December 2015 SOC (issued for claims of PTSD, bilateral hearing loss, hypertension, bilateral foot and a cervical disability) and August 2016 SOC (issued for the claims of a back disability, a gall bladder disability, nerve damage of the bilateral lower extremities, an acquired psychiatric disorder other than PTSD, a headache disability, a disability manifested by shortness of the breath and a disability manifested by swelling of the joints), additional evidence, both developed by VA and submitted by the Veteran, has been associated with the record. The Veteran did not respond to December 2018 VA correspondence inquiring as to if he would like to waive AOJ review of this additional evidence. See 38 C.F.R. § 20.1304 (c). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, although the Veteran's substantive appeal for the relevant issues was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nevertheless, this evidence is not relevant to the Veteran's claim for entitlement to a compensable evaluation for bilateral hearing loss, and as the Veteran's remaining claims are either reopened and/or remanded below, there is no prejudice to the Veteran in this regard. A July 2018 rating decision denied entitlement to service connection for erectile dysfunction and continued previous denials for entitlement to service connection for diabetes, a heart disability, and sleep apnea. In August 2018, the Veteran submitted a timely NOD with respect to these denials, and an SOC was issued in March 2020. While the Veteran submitted a VA Form 9 in May 2020, it was not timely. Thus, these issues are not on appeal. As a final initial matter, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) of the Board of Veterans' Appeals (Board) in November 2020. A transcript of the hearing is of record. As this VLJ is no longer employed at the Board, the Veteran was offered the opportunity to testify at another hearing by a May 2021 letter. As the Veteran has not responded, the Board may proceed based on the evidence of record. New and Material VA may reopen and review a claim, which has been previously denied, if new and material evidence is received, or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a headache disability A March 2007 rating decision, in pertinent part, denied a claim for a headache disability. The Veteran did not appeal the March 2007 rating decision's denial as to this issue in a timely manner, and no new and material evidence was submitted within the appeal period. Thus, the March 2007 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 In January 2015, the Veteran, in part, filed a claim to reopen the claim for entitlement to service connection for a headache disability. As noted above, the July 2015 rating decision denied the claim as new and material evidence was not received and forms the basis of the present appeal. New evidence added to the record since the March 2007 rating decision, includes additional statements from the Veteran and fellow servicemembers, medical records and service records. With respect to the additional service records, these records are either duplicative of prior records, dated after March 2007, or not relevant to the claim herein. Further, while a January 1992 service treatment record, submitted by the Veteran in February 2014, documented a chief complaint of headaches and fever, a diagnosis of gastroenteritis, rather than a headache disability was endorsed. Thus, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as this claim. Nonetheless, the new evidence also includes additional medical records, including a June 2018 treatment record which includes headache as part of an active problem list. In this regard, the March 2007 rating decision found, in part, service connection for headaches was not warranted based on a finding that the Veteran's medical records were negative for any findings of any chronic disability for VA purposes associated with his reported symptoms. Therefore, this evidence is relevant to whether the Veteran has a current headache disability. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim to reopen service connection for a headache disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension A March 2007 rating decision, in pertinent part, denied a claim for hypertension. The Veteran did not appeal the March 2007 rating decision's denial as to this issue in a timely manner, and no new and material evidence was submitted within the appeal period. Thus, the March 2007 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In January 2015, the Veteran, in part, filed a claim to reopen the claim for entitlement to service connection for hypertension. As noted above, the July 2015 rating decision denied the claim as new and material evidence was not received and forms the basis of the present appeal. New evidence added to the record since the March 2007 rating decision, includes additional statements from the Veteran and fellow servicemembers, medical records and service records. With respect to the additional service records, these records are duplicative of prior records, dated after March 2007, or not relevant to the claim herein. Further, although additional service treatment records dated in July 2003 were obtained by VA in January 2015, and which documented the Veteran's reports of chest pain and hypertension; however, a diagnosis of hypertension was not endorsed. Further, these July 2003 service records are essentially duplicative of service records obtained in November 2005, which included September 2003 service records which documented, in part, the Veteran underwent 24 hour blood pressure monitoring which did not demonstrate hypertension for VA purposes. Thus, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as this claim. Nonetheless, the new evidence also includes additional medical records, including a May 2018 hypertension disability benefits questionnaire which endorsed a diagnosis of essential hypertension and found the Veteran's hypertension was less likely than not proximately due to or the result of the his service-connected PTSD; however, the May 2018 examiner did not address aggravation. In this regard, the March 2007 rating decision found, in part, service connection for hypertension was not warranted as although the Veteran was noted to be assessed with "hypertension" during his active service in 2003, hypertension was not shown to be a chronic disability at that time within the meaning of VA law defining hypertension and the medical evidence reviewed following the Veteran's discharge in 2003 was negative for any findings demonstrating any continuity of symptomatology relative to hypertension, including any treatment and/or elevated and sustained blood pressure readings. Thus, the May 2018 opinion at least triggers the duty to assist with respect to consideration of a new theory of entitlement on the basis of aggravation and raises a reasonable possibility of substantiating the claim. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim to reopen service connection for hypertension is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a disability manifested by swelling of the joints A March 2007 rating decision, in pertinent part, denied a claim for swelling of the joints. The Veteran did not appeal the March 2007 rating decision's denial as to this issue in a timely manner, and no new and material evidence was submitted within the appeal period. Thus, the March 2007 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In January 2015, the Veteran, in part, filed a claim to reopen the claim for entitlement to service connection for a disability manifested by swelling of the joints. As noted above, the July 2015 rating decision denied the claim as new and material evidence was not received and forms the basis of the present appeal. New evidence added to the record since the March 2007 rating decision, includes additional statements from the Veteran and fellow servicemembers, medical records and service records. With respect to the additional service records, these records are duplicative of prior records, dated after March 2007, or not relevant to the claim herein. Specifically, these records did not reference or address swelling of the joints. Thus, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as this claim. Nonetheless, the new evidence also includes additional medical records. In this regard, in his August 2016 claim for service connection for swelling of the joints, the Veteran reported his disability was due to exposure to environmental hazards during the Gulf War. In this regard, a May 2018 gulf war general medical examination disability benefits questionnaire was obtained and did not find any diagnosed illnesses for which no etiology was established. Nonetheless, the Board find this evidence at least triggers the duty to assist with respect with consideration of a new theory of entitlement on this basis and raises a reasonable possibility of substantiating the claim. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim to reopen service connection for a disability manifested by swelling of the joints is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for nerve damage of the bilateral lower extremities A March 2007 rating decision, in pertinent part, denied the claims for tingling of the hands and back as well as back pain and implicitly denied the claim for nerve damage of the bilateral lower extremities. The "implicit denial" rule provides that in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision. Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The implicit denial rule is, at bottom, a notice provision. Id. at 965. In Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the United States Court of Appeals for Veterans Claims (Court) set forth four factors that must be considered when determining whether a claim was implicitly denied: (1) The relatedness of the claims; (2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; (3) the timing of the claims; and (4) whether the claimant is represented. Id. at 212-214. In this case, each of the Cogburn factors has been met. In regard to the first factor, nerve damage of the bilateral lower extremity is related to the claim for a back disability, as neurological symptoms are specifically noted in the rating criteria for a thoracolumbar spine disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). In regard to the second and third factors, while the March 2007 rating decision specifically did not discuss disability of the bilateral lower extremities, the Veteran, in his November 2005 application claimed in part, "pain from lower back down to legs", which reflects that such were part and parcel of the same disability and that the claims were filed simultaneously. Further, the March 2007 rating decision found, in part, the medical evidence was negative for any findings of any chronic disability for VA purposes associated with his reported symptoms, which would include his claimed pain from lower back down to legs. For the fourth factor, the Veteran at that time was represented by The American Legion, a Veterans Service Organization (VSO). VA is required to read filings liberally when a claimant is either pro se or represented by a VSO. Even reading the filings liberally, the Board finds that the March 2007 rating decision implicitly denied a claim for nerve damage of the bilateral lower extremities. The Veteran did not appeal the March 2007 rating decision's denial as to this issue in a timely manner, and no new and material evidence was submitted within the appeal period. Thus, the March 2007 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In August 2015, the Veteran, in part, filed a claim to reopen the claim for entitlement to service connection for nerve damage both as secondary to back pain and secondary to bilateral foot condition, which was discussed above, the Board finds is best characterized as nerve damage of the bilateral lower extremities, which was denied in a December 2015 rating decision and forms the basis of the present appeal. New evidence added to the record since the March 2007 rating decision, includes additional statements from the Veteran and fellow servicemembers, medical records and service records. With respect to the additional service records, these records are duplicative of prior records, dated after March 2007, or not relevant to the claim herein. Specifically, these additional records did not reference or address nerve damage of the bilateral lower extremities. Thus, the Board finds that the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as this claim. Nonetheless, the new evidence also includes additional medical records. In this regard, a May 2018 peripheral nerves conditions disability benefits questionnaire endorsed lumbar radiculopathy of the left lower extremity and the right lower extremity and a June 2018 treatment record problem list includes lumbar radiculopathy, and neuralgia/neuritis of the lower leg as part of an active problem list. In this regard, the March 2007 rating decision found, in part, service connection was not warranted based on a finding that the Veteran's medical records were negative for any findings of any chronic disability for VA purposes associated with his reported symptoms. Therefore, this evidence is relevant to whether the Veteran has nerve damage of the bilateral lower extremities. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim to reopen service connection for nerve damage of the bilateral lower extremities is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). As to all of the claims being reopened herein, the Board is required, when evaluating the evidence and rendering a decision on the merits, to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained in the Reasons for Remand section below, the Board has determined that additional development is necessary before the merits of the Veteran's service connection claims can be addressed. Increased Evaluation Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a compensable evaluation for bilateral hearing loss The Veteran contends a compensable evaluation is warranted for his bilateral hearing loss. The current claim for increase stems from a January 5, 2015 claim for increase. As such, the rating period for consideration on appeal is from January 5, 2014. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a) (2017). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). However, in light of the audiological examination results of record, application of these provisions is not warranted in the Veteran's case. A hearing loss and tinnitus disability benefits questionnaire was obtained in December 2013. The December 2013 VA examination results documented a puretone threshold average of 35 for the right ear and 46 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The December 2013 VA examination results revealed Maryland CNC speech recognition scores of 96 percent for each ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in the right ear and level I hearing impairment in the left ear. Applying the results to Table VII, a zero percent rating is warranted for bilateral hearing loss based on the April 2011 audiological examination results. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Another hearing loss and tinnitus disability benefits questionnaire was obtained in June 2015. The examination results documented a puretone threshold average of 28 for the right ear and 31 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The June 2015 VA examination results revealed Maryland CNC speech recognition scores of 88 percent for the right ear and 98 percent for the left ear. Based on those results with the utilization of Table VI, the Veteran had level II hearing impairment in the right ear and level I hearing impairment in the left ear. Applying the results to Table VII, a zero percent rating is warranted for bilateral hearing loss based on the June 2015 audiological examination results. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Further, the evidence does not reflect, nor has the Veteran asserted his bilateral hearing loss has increased in severity since he was last examined by VA in June 2015. In this regard, a November 2017 VA treatment record, documented, in part, that the Veteran's hearing remained without changes since the last audiology evaluation performed on December 24, 2013. Further, other VA treatment records noted hearing loss and hearing aid adjustments but did not provide additional audiometric testing. Given the puretone threshold averages and speech recognition scores as set forth in December 2013 and June 2015 audiological examinations, bilateral hearing loss is evident. However, in mechanically applying the rating criteria, the Veteran's bilateral hearing loss has not been shown to the degree to warrant a compensable rating. The demonstrated audiometric test results simply do not call for a rating in excess of zero percent for this level of hearing impairment pursuant to the rating criteria. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is so for the entire rating period on appeal. Furthermore, the Board recognizes the Veteran's assertions, including in his July 2015 NOD, that his hearing loss is worse than currently evaluated. Specifically, in his July 2015 NOD, he stated a 50 percent evaluation was warranted as he could can barely hear with his hearing aid in and facing the person talking. These endorsements are admissible and have been taken into consideration. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his bilateral hearing loss according to the rating criteria. Such competent evidence concerning the nature and extent of the Veteran's bilateral hearing loss has been provided by VA medical professionals who have objectively examined him, and these medical findings directly address the criteria under which the Veteran's hearing loss disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and are therefore accorded greater weight than the Veteran's subjective complaints of increased symptomatology for his bilateral hearing loss. For these reasons, the Board finds that the Veteran is not entitled a compensable initial evaluation for bilateral hearing loss. In making this determination the Board considered the application of "staged" ratings, but found no additional distinctive periods where the Veteran's service-connected bilateral hearing loss met or nearly approximated the criteria for a compensable evaluation. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against a compensable rating for the bilateral hearing loss, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with respect to his bilateral hearing loss disability. REASONS FOR REMAND While the Board regrets further delay, the Board finds that additional development must be completed prior to adjudication of the remaining issues on appeal. 1. Entitlement to service connection for residuals of removal of the gallbladder, claimed as due to contaminated water exposure at Camp Lejeune is remanded. Review of the record does not list an accurate accounting as to the Veteran's periods of active service, active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his service. For example, of record is a September 2005 post-deployment health assessment, but there is no corresponding period of active duty of record. Further, in a July 2018 statement, the Veteran reported, in part, that while on orders for the U.S. Army National Guard he received hospital treatment to have his gallbladder removed. The record reflects the Veteran was diagnosed with cholelithiasis with chronic cholecystitis in May 2011 and underwent a laparoscopic cholecystectomy with intraoperative cholangiogram. Thus, the Agency of AOJ should attempt to verify the Veteran's periods of active duty, ACDUTRA or INACDTURA, to include, as necessary, efforts to obtain the Veteran's pay stubs documenting these periods. 2. Entitlement to service connection for a back disability, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. The claim for entitlement to service connection for a back disability having been recharacterized pursuant to 3.156(c), the Board finds that additional development is required before it may be adjudicated. Specifically, the July 2015 rating decision, subsequent December 2015 rating decision, and the August 2016 SOC denied reopening, finding that new and material evidence had not been submitted. Hence, as the claim was not considered on the merits on any occasion, the Board finds that the AOJ must decide the merits pursuant to 3.156 (c), in the first instance so as to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Further, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability because no VA examiner has opined whether the Veteran has a current back disability which is related to an in-service injury, event, or disease. 3. Entitlement to service connection for a headache disability, to include as secondary to service-connected residuals of a neck injury, degenerative joint disease of the cervical spine, also claimed as due to contaminated water exposure at Camp Lejeune, or in the alterative, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. The claim for entitlement to service connection for a headache disability having been reopened, the Board finds that additional development is required before it may be adjudicated. Specifically, the July 2015 rating decision, subsequent December 2015 rating decision, and the August 2016 SOC denied reopening, finding that new and material evidence had not been submitted. Hence, as the claim was not considered on the merits on any occasion, the Board finds that the AOJ must decide the merits in the first instance so as to avoid any prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. Further, a March 2008 VA treatment record provided an impression of chronic headaches and indicated chronic headaches may be related to the Veteran's neck injuries and pain in neck as well as stress. In this regard, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a headache disability because no VA examiner has opined whether the Veteran has a headache disability which is secondary to his service-connected residuals of a neck injury, degenerative joint disease of the cervical spine. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is remanded. The claim for entitlement to service connection for hypertension having been reopened, the Board finds that additional development is required before it may be adjudicated. Specifically, the July 2015 rating decision and the December 2015 SOC denied reopening, finding that new and material evidence had not been submitted. Hence, as the claim was not considered on the merits on any occasion, the Board finds that the AOJ must decide the merits in the first instance so as to avoid any prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. Further, as discussed above, a May 2018 hypertension disability benefits questionnaire endorsed a diagnosis of essential hypertension and found the Veteran's hypertension was less likely than not proximately due to or the result of the his service-connected PTSD; however, the May 2018 examiner did not address aggravation. Thus, an opinion on this basis and on a direct incurrence basis is warranted. 5. Entitlement to service connection for a disability manifested by shortness of breath, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. The claim for entitlement to service connection for a disability manifested by shortness of breath having been recharacterized pursuant to 3.156(c), the Board finds that additional development is required before it may be adjudicated. Specifically, the July 2015 rating decision, subsequent December 2015 rating decision, and the August 2016 SOC denied reopening, finding that new and material evidence had not been submitted. Hence, as the claim was not considered on the merits on any occasion, the Board finds that the AOJ must decide the merits in the first instance pursuant to 3.156 (c), so as to avoid any prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. 6. Entitlement to service connection for a disability is manifested by swelling of the joints, claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. The claim for entitlement to service connection for a disability is manifested by swelling of the joints having been reopened, the Board finds that additional development is required before it may be adjudicated. Specifically, the July 2015 rating decision, subsequent December 2015 rating decision, and the August 2016 SOC denied reopening, finding that new and material evidence had not been submitted. Hence, as the claim was not considered on the merits on any occasion, the Board finds that the AOJ must decide the merits in the first instance so as to avoid any prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. 7. Entitlement to service connection for nerve damage of the bilateral lower extremities, to include as secondary to a back disability and/or bilateral foot disability, is remanded. The claim for service connection for nerve damage of the bilateral lower extremities is inextricably intertwined with the pending claims for service connection for a back disability and/or bilateral foot disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of the claim for service connection for nerve damage of the bilateral lower extremities must be deferred pending resolution of the claims for service connection for a back disability and/or bilateral foot disability. 8. Entitlement to service connection for bilateral foot disability, to include as secondary to a back disability, also claimed as due to exposure to environmental hazards during the Persian Gulf War, is remanded. The claim for entitlement to service connection for bilateral foot disability having been recharacterized pursuant to 3.156(c), the Board finds that additional development is required before it may be adjudicated. Initially, the Board notes that the Veteran's May 1985 enlistment examination indicated the existence of a preexisting foot disability; however, the notation is not legible, nonetheless, the claim should be addressed on this basis. Further, most recently, a May 2018 foot conditions disability benefits questionnaire found no evidence of a specific left foot or right foot condition. However, the same examiner also found, under the section specific for flatfoot, that the Veteran had pain on use of both feet. Further, the Veteran's VA treatments do reflect foot related diagnoses, such as an April 2014 VA treatment record which documented, in part, tarsal tunnel syndrome bilaterally, plantar fasciitis bilaterally with infracalcaneal bursitis, mild equinus contracture bilaterally, hypermobility medial column, and hallux valgus left foot, asymptomatic, and an August 2015 VA treatment record which documented, in part, resolved plantar fasciitis of the left foot, resolved tarsal tunnel syndrome of the left foot, hammer toe contracture, and pes planus with mechanical instability. Moreover, the Veteran submitted June 2018 statements from fellow service members, specifically from L. T., T. M., C. N., and T. T., which in which they generally recalled the Veteran experienced foot pain during his active service. Thus, the Board finds an opinion addressing the claim on direct incurrence basis is warranted. 9. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include as secondary to a disability manifested by shortness of breath, is remanded. As noted above, under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, if the claimant or the claimant's representative submits evidence to the AOJ or the Board for consideration in connection with the issue on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or a supplemental statement of the case (SSOC) considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. In this regard, as alluded to above, since the most recent issuance of a December 2015 SOC, in part, for entitlement to an evaluation in excess of 50 percent for PTSD, additional relevant evidence in the form of a May 2018 PTSD disability benefits questionnaire, addressing the Veteran's PTSD and other psychiatric diagnosis was associated with the record. The May 2018 examiner diagnosed a diagnosis of PTSD but also, as to other diagnoses, referenced the Veteran's medical records. In this regard, a June 2018 problem list includes diagnoses of dysthymia and adjustment disorder with mixed anxiety and depressed mood. The Veteran did not respond to December 2018 VA correspondence inquiring as to if he would like to waive AOJ review of this additional evidence. Thus, the Board finds that remand of this issue to the AOJ for issuance of a SSOC reflecting consideration of this additional relevant evidence is warranted. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Further, the claim for service connection for an acquired psychiatric disorder other than PTSD is inextricably intertwined with the pending claim for service connection for a disability manifested by shortness of breath. Harris, 1 Vet. App. at 183. Therefore, consideration of the claim for service connection for psychiatric disorder other than PTSD must be deferred pending resolution of the claim for service connection for a disability manifested by shortness of breath. 10. Entitlement to an evaluation in excess of 20 percent for residuals of a neck injury, degenerative joint disease of the cervical spine, is remanded. The most recent June 2015 neck conditions disability benefits questionnaire which addressed the Veteran's residuals of a neck injury, degenerative joint disease of the cervical spine, does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner found, in part, it was not possible to determine without resorting to mere speculation if additional limitation of motion was present due to pain during flare-ups or when the joint was used repeatedly over a period of time, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions; however, the examiner did not attempt to elicit relevant information any additional functional loss suffered during flare-ups or when the joint was used repeatedly over a period of time. Thus, another examination is warranted. 11. Entitlement to an evaluation in excess of 50 percent PTSD is remanded. As alluded to above, since the most recent issuance of a December 2015 SOC, in part, for entitlement to an evaluation in excess of 50 percent for PTSD, additional relevant evidence in the form of a May 2018 PTSD disability benefits questionnaire, addressing the Veteran's PTSD was associated with the record. As noted above, the automatic AOJ waiver exception does not apply to evidence that was not submitted by the claimant or representative. Further, the Veteran did not respond to December 2018 VA correspondence inquiring as to if he would like to waive AOJ review of this additional evidence. Thus, the Board finds that remand of this issue to the AOJ for issuance of a SSOC reflecting consideration of this additional relevant evidence is warranted. See 38 C.F.R. §§ 19.31, 19.37. The matters are therefore REMANDED for the following actions: 1. The AOJ should attempt to verify any of the Veteran's periods of ACDUTRA or INACDUTRA, to include, if warranted, to contact the Defense Finance and Accounting Service (DFAS) and any other appropriate source, and request the Veteran's pay stubs. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed headache disability. The examiner must opine whether any diagnosed headache disability it is at least as likely as not (1) proximately due to service-connected residuals of a neck injury, degenerative joint disease of the cervical spine, or (2) aggravated beyond its natural progression by service-connected residuals of a neck injury, degenerative joint disease of the cervical spine. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hypertension. The examiner must opine whether the Veteran's hypertension it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether the Veteran's hypertension is at least as likely as not aggravated beyond its natural progression by service-connected PTSD. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability. Identify and reconcile all left foot and/or right foot diagnoses of record during the appeal period or proximate to the appeal period, to include, but not limited to, tarsal tunnel syndrome bilaterally, plantar fasciitis bilaterally with infracalcaneal bursitis, mild equinus contracture bilaterally, hypermobility medial column, and hallux valgus of the left foot, hammer toe contracture, and pes planus with mechanical instability. The examiner should provide an explanation for any discrepancy as to why any diagnoses were provided if the Veteran is found not to have such conditions (for example whether the condition resolved, or the diagnosis was made erroneously). The examiner must opine whether any identified left foot disability and/or right foot disability clearly and unmistakably (undebatable) preexisted the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a neck injury, degenerative joint disease of the cervical spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to [insert increased rating disability] alone and discuss the effect of the Veteran's residuals of a neck injury, degenerative joint disease of the cervical spine on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.