Citation Nr: 22017545 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-40 720 DATE: March 25, 2022 ORDER New and material evidence having been received, the request to reopen a claim for service connection for a left eye condition is granted. New and material evidence having been received, the request to reopen a claim for service connection for bilateral hearing loss is granted. New and material evidence having been received, the request to reopen a claim for service connection for tinnitus is granted. Service connection for tinnitus is granted. REMANDED Service connection for a left eye condition is remanded. Service connection for bilateral hearing loss is remanded. Service connection for an esophageal or stomach condition, including gastroesophageal reflux disease (GERD) with hiatal hernia and Barrett's esophagus, is remanded. FINDINGS OF FACT 1. Additional evidence has been received since the June 1991 final decision which raises a reasonable possibility of substantiating the previously denied claims for service connection for a left eye condition, bilateral hearing loss, and tinnitus. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims for service connection for a left eye disability, bilateral hearing loss, and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to August 1990. In November 2021, the Veteran and his wife testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. The Board notes that the Veteran originally filed his claim for service connection for GERD, hiatal hernia, and Barrett's esophagus. The October 2015 rating decision on appeal denied service connection for GERD, including hiatal hernia and Barrett's esophagus. Pursuant to the Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has re-characterized the issue on appeal as entitlement to service connection for a an esophageal or stomach condition, including gastroesophageal reflux disease (GERD) with hiatal hernia and Barrett's esophagus. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. New Material Evidence To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156 (a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Left Eye Condition Bilateral Hearing Loss Tinnitus The Board notes that its task is to first decide whether new material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record since the final June 1991 rating decision includes medical records, statements, and the Veteran's November 2021 hearing testimony. Thus, based on this newly added evidence, the Board finds that new and material evidence has been added to the record which relates to previously unestablished elements of the claims and the claims for service connection for a left eye condition, bilateral hearing loss, and tinnitus are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus The Veteran contends that he first experienced tinnitus during service and has had tinnitus intermittently since then. See November 2021 hearing testimony. The Veteran has a current diagnosis of tinnitus as evidenced by his 1991 claim, August 2015 VA examination, and his November 2021 hearing testimony. A lay person like the Veteran is competent to diagnose tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Tinnitus is an organic disease of the nervous system and thus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331; Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran testified in his November 2021 hearing that he has had tinnitus for several years and that he first noticed tinnitus "off and on" during his military service, which he attributed to exposure to loud noise as an aircraft carrier handler. Due to his military occupational specialty, the Veteran's noise exposure in-service has been conceded. The record does not contain evidence that contradicts the Veteran's hearing testimony. The Board also notes that the Veteran first claimed service connection for tinnitus within one year of his active duty in April 1991. Therefore, although the medical record does not contain a report of tinnitus during service, the Board will resolve doubt in the Veteran's favor and find that it is at least as likely as not that the Veteran's tinnitus began during service. As a chronic condition, any subsequent manifestations of tinnitus are service-connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and therefore the Veteran's tinnitus is attributable to service. For the foregoing reasons, the Board resolves doubt in the Veteran's favor and grants service connection for tinnitus on a presumptive basis. The Board also notes that the Veteran's file contains an Intent to File received by VA on June 23, 2015, and his Claim for Compensation on July 24, 2015. Thus, the Veteran's date of service connection for tinnitus is appropriate for June 23, 2015. REASONS FOR REMAND Left Eye Bilateral Hearing Loss The Board notes that the Veteran's prior examinations for a left eye disability and bilateral hearing loss were afforded to the Veteran did not diagnose a disability. However, in his November 2021 hearing testimony the Veteran testified that he has a currently diagnosed left eye disorder and has hearing loss. The Board finds that new examinations are warranted for these conditions. Esophageal/Stomach Disorder The Veteran was afforded a VA examination regarding his claimed conditions in 2015. The examiner, however, did not provide an opinion on the etiology of the Veteran's diagnosed GERD, but did find that the Veteran's Barrett's esophagus was related to his GERD. The Board finds that this opinion is inadequate for adjudication purposes and that a new examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of any left eye disability, bilateral hearing loss, and GERD. The claims file should be made available to the examiners for review. The examiners must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left eye disability, bilateral hearing loss, and diagnosed GERD were incurred in, or due to, the Veteran's service. The Veteran's lay statements regarding onset and continuity of symptomology, including his November 2021 hearing testimony, should be recorded, and considered. As to the Veteran's bilateral hearing loss, a discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure), including any service treatment records or military personnel file records which may have been made a part of the evidence of record and the Veteran's and his wife's lay assertions, should be considered in giving this opinion. The examiner should note that the Veteran's noise exposure in service has been conceded. It is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran's hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant's service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given without resort to speculation, the examiner must explain the reason for that conclusion. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.