Citation Nr: 0005907 Decision Date: 03/04/00 Archive Date: 03/14/00 DOCKET NO. 98-21 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for gastroesophageal reflux disease with peptic esophagitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The case comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The veteran served on active service from October 1952 to November 1973. FINDINGS OF FACT 1. In a May 1974 rating decision, the RO denied the veteran's claim of service connection for the residuals of gastrointestinal disease with low chest pains; this decision is final. 2. In a December 1988 rating decision, the RO denied the veteran's claim of service connection for bilateral hearing loss and tinnitus; this decision is final. 3. The evidence associated with the claims folder since the May 1974 and the December 1988 rating decisions, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claims. 4. There is medical evidence that indicates the veteran's bilateral hearing loss is related to his active service. 5. There is medical evidence that indicates the veteran's tinnitus is related to his active service. 6. There is no medical evidence that establishes a causal nexus between the veteran's in-service gastrointestinal symptomatology/diagnoses and his current gastrointestinal disorder. 7. The veteran's claim of service connection for gastroesophageal reflux disease with peptic esophagitis is not well grounded. CONCLUSIONS OF LAW 1. The May 1974 and the December 1988 rating decisions are final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (1999). 2. The veteran has submitted new and material evidence to reopen the claims of entitlement to service connection for bilateral hearing loss, tinnitus, and gastroesophageal reflux disease with peptic esophagitis, and the claims are reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's bilateral hearing loss was incurred during his active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 4. The veteran's tinnitus was incurred during his active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 5. The claim of entitlement to service connection for gastroesophageal reflux disease with peptic esophagitis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Applicable Law. The law grants a period of 1 year from the date of the notice of the result of the initial determination for the filing of a notice of disagreement; otherwise, that decision becomes final and is not subject to revision in the absence of new and material evidence or clear and unmistakable error. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105(a) (1999). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). In this case, in a May 1974 rating decision, the veteran was denied service connection for the residuals of gastrointestinal disease with low chest pain on the grounds that no gastrointestinal disease was found at that time. In addition, in a December 1988 rating decision, he was denied service connection for bilateral hearing loss and tinnitus as the level of severity of his hearing impairment did not meet the criteria to be considered a disability for VA purposes, and as the evidence did not show a continuity of symptomatology, but rather showed a date of onset within the prior 6 or 7 years. The veteran was provided notice of both the May 1974 and the December 1988 determinations via letter. However, the veteran did not timely appeal either decision. Subsequently, in an August 1998 rating decision, the RO declined to reopened the veteran's claims of service connection for bilateral hearing loss, tinnitus, and gastroesophageal reflux disease with peptic esophagitis. As such, the May 1974 and the December 1988 rating decisions are final as outlined in 38 U.S.C.A. § 7105 (West 1991), and consequently, the veteran's claims may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (1999). Consideration of whether new and material evidence has been submitted is required before the merits of a claim can be considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the recent case of Winters v. West, 12 Vet. App. 203 (1999) (en banc), the United States Court of Appeals for Veterans Claims (the Court), citing Elkins v. West 12 Vet. App. 209 (1999) (en banc), held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. Upon a reopening of the claim on appeal, the Board must turn to the "well grounded" analysis required by Winters, Elkins and Hodge. In this regard, the veteran must satisfy three elements for a claim of service connection to be well grounded. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in- service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Thus, the claimant is required to establish a nexus between the claimed disability and his/her active military service, even if a continuity of symptomatology has been established under 38 C.F.R. § 3.303(b). See Clyburn v. West, 12 Vet. App. 296 (1999) (distinguishing the factual circumstances in Falzone v. Brown, 8 Vet. App. 398 (1995), and Hampton v. Gober, 10 Vet. App. 481 (1997)). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). II. Bilateral Hearing Loss and Tinnitus. In this case, since the December 1988 final adjudication, the additional evidence in the file which is related to these issues includes medical records from the Des Moines VA Medical Center (VAMC) dated from August 1974 to January 1990 describing the treatment the veteran received for various health problems. These records also contained July 1988 notations indicating the veteran had sensorineural hearing loss. In addition October 1974 records from the Grand Island VAMC note he was treated for otitis externa of the ears. Articles from OSHA discussing certain chemical samplings indicate that exposure to chlorobromomethane caused ringing in the ears. Furthermore, a May 1998 VA audiological examination report notes the veteran reported bilateral hearing loss for the past 20 years and a history of noise exposure to aircraft engine noise. Upon examination, his pure tone thresholds, in decibels, for the left ear were 5, 10, 20, 50, 50, and for the right ear were 5, 10, 15, 20, 35, both measured at 500, 1000, 3000, 2000, and 4000 Hertz. His speech discrimination scores were 88 percent for the left ear, and 92 percent for the right ear. He was also diagnosed with bilateral tinnitus. More importantly, the examiner noted that it was as likely as not that the veteran's hearing loss and tinnitus resulted from his acoustic trauma during his military service. Moreover, a May 1998 VA ear disease examination report further notes that, in the absence of any other loud noise exposure, the veteran's condition was most likely related to his loud noise exposure during service in the military. After a review of the additional evidence submitted subsequent to the December 1988 rating decision, the Board finds that some of the recently submitted evidence warrants a reopening of the veteran's claims in that such evidence was not previously submitted to agency decisionmakers, bears directly and substantially upon the specific matters under consideration, is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. The Board finds that such evidence contributes to a complete evidentiary record for the evaluation of the veteran's claims. As such, this evidence is "new and material" as contemplated by law, and thus, provides a basis to reopen the veteran's claims of service connection for bilateral hearing loss and tinnitus. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Having reopened the veteran's claims of service connection for bilateral hearing loss and tinnitus, the Board turns to the "well grounded" analysis required by Winters, Elkins and Hodge. As noted above, the veteran must satisfy three elements for his claims for service connection to be well grounded. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in- service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In addition, before service connection may be granted for hearing loss, the loss must be of a particular level of severity. For purposes of applying the laws administered by the VA, impaired hearing will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. However, in Hensley v. Brown, 5 Vet. App. 155 (1993), the Court stated that 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that when audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 160. In reviewing the evidence of record de novo, the Board notes the veteran is currently contending that his bilateral hearing loss and tinnitus are related to his service as a fireman. He contends he was exposed to acoustic trauma during his service as his duties required him to stand between 4 to 6 hours, on a normal shift of 24 hours, next to the runway in the fire truck for fire protection while aircraft took off and landed. In addition, he was exposed to acoustic trauma while serving as instructor and crew member on a helicopter. Furthermore, the Board finds that the veteran's service medical records are negative for any complaints of or treatment for tinnitus. However, these records contain various examination reports evidencing a decrease in the veteran's hearing ability over his 20 years of service. Specifically, an October 1952 examination report shows he scored 15/15 bilaterally on the whispered and spoken voice tests with no hearing abnormalities noted at that time. However, his August 1973 retirement examination report show his pure tone thresholds, in decibels, for the left ear were 5, 0, 20, 30, 50, and for the right ear which were 15, 15, 10, 15, 25, both measured at 500, 1000, 3000, 2000, and 4000 Hertz. Thus, after a de novo review of the veteran's case, the Board finds that the veteran's DD-214 shows he was a fire protection supervisor, and supports his contention that he was exposed to noise trauma during his service. In addition, his service medical records show a decrease in hearing ability, which coupled with the May 1998 VA examination reports discussed above linking the veteran's current bilateral hearing loss and tinnitus to his service, provide the necessary nexus between the veteran's current bilateral hearing loss and tinnitus, and his service. As such, the Board concludes that the veteran has established he is entitled to service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). See 38 C.F.R. § 3.303(b); see Clyburn v. West, 12 Vet. App. 296 (1999). III. Gastroesophageal Reflux Disease with Peptic Esophagitis. In this case, since the May 1974 final adjudication, the additional evidence in the file which is related to this issue includes medical records from the Grand Island VAMC dated from August 1974 to September 1978 containing February 1975 notations showing the veteran complained of upset stomach for the prior two years, and was diagnosed with a possible ulcer. In addition, medical records from the Des Moines VAMC dated from August 1974 to January 1990 contain January 1986 notations from the Occupational Safety and Health Administration (OSHA) showing he complained of upset stomach not relieved by antacid. As well, November 1997 medical notations reveal a diagnosis of hiatal hernia with reflux. A November 1981 VA examination report shows the veteran reported constant indigestion, but no diagnosis was rendered at that time. And, medical records from the Kansas City VAMC dated from March 1998 to May 1998 show the veteran had dyspepsia and abdominal pain, and note he underwent an upper endoscopy revealing severe reflux esophagitis and a hiatal hernia. Moreover, Articles from OSHA discussing certain chemical samplings indicate that carbon tetrachloride causes gastrointestinal pain. Lastly, a May 1998 VA stomach examination report indicates the veteran had a diagnosis of gastroesophageal reflux disease with peptic esophagitis. His symptoms were deemed to be consistent with long-standing gastroesophageal reflux disease that was recently associated with dysphagia secondary to ingestion of solid foods. And, a barium swallow examination performed on the veteran was consistent with peptic esophagitis and thickening of the folds in the esophagus, which caused him mild to moderate disability. However, his diagnosis was not deemed to be directly related to the fact that he served in the military. After a review of the record, the Board finds that the evidence, as set forth above, is sufficient to reopen the veteran's claim. As noted above, the veteran was initially denied service connection in May 1974 on the basis that, although he did have gastrointestinal symptomatology during his service, he did not present evidence of gastrointestinal disease at that time. However, at present, the Board finds the additional medical evidence since the May 1974 denial shows he is currently diagnosed with a gastrointestinal disorder which has been symptomatic since early 1975 to the present. As such, the Board finds that the evidence submitted, as noted above, tends to show a continuity of the veteran's in-service gastrointestinal symptomatology since his discharge from service to the present. As noted in Hodge, "the ability of the Board to render a fair, or apparently fair, decision may depend on the veteran's ability to ensure the Board has all potentially relevant evidence before it," and the Federal Circuit stated further, that some new evidence may "contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge, 155 F.3d at 1363. Therefore, the Board finds that the evidence submitted since the last prior final decision in May 1974 satisfies this requirement. Based on the foregoing, the Board finds that some of the recently submitted evidence warrants a reopening of the veteran's claim in that such evidence was not previously submitted to agency decisionmakers, bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. The Board finds that such evidence contributes to a complete evidentiary record for the evaluation of the veteran's claim. Thus, this evidence is "new and material" as contemplated by law, and provides a basis to reopen the veteran's claim of service connection for gastroesophageal reflux disease with peptic esophagitis. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Having reopened the veteran's claim of service connection, the Board turns to the "well grounded" analysis required by Winters, Elkins and Hodge. And, upon a de novo review of the veteran's claim, the Board notes the veteran is currently contending that his current gastrointestinal disorder is related to his service as he was exposed to chemicals as a firefighter, which affected his digestive system. He also notes that during his duties in fire prevention he was required to fill many fire extinguishers with carbon tetrachloride and chlorobromone. In addition, the Board finds that the veteran's service medical records show he was treated on several occasions during his active service for gastrointestinal symptomatology, and was variously diagnosed with or treated for gastritis, epigastric pain, gastritis reflux into esophagus (esophageal), and functional gastrointestinal spasms. Furthermore, as noted above, the evidence submitted since the May 1974 rating decision, shows that he has continued to receive treatment for such gastrointestinal problems since his discharge from service in 1973 to the present, as well as that his current diagnosis includes peptic esophagitis, which is one of the diagnoses for which he was treated during his service. However, the Board also finds that the evidence, as set forth above, does not provide sufficient evidence to establish a claim that is plausible or capable of substantiation. Specifically, the present record does not include medical evidence showing that the veteran's present gastroesophageal reflux disease with peptic esophagitis is in fact related to his in-service symptomatology, or is otherwise related to his service. Specifically, the veteran has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a nexus between the currently claimed gastrointestinal disorder and his period of service. A well- grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In addition, although the evidence arguably shows a continuity of symptomatology since service, he has not provided medical evidence of a nexus between his currently claimed gastrointestinal disorder, and either those in- service symptoms or his military service. See Savage, supra; Clyburn, supra. Thus, in the absence of competent medical evidence to support the claim of service connection for gastroesophageal reflux disease with peptic esophagitis, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and thus, the claim must be denied. 38 U.S.C.A. § 5107 (West 1991). In arriving at this conclusion, the Board took into consideration the various statements from the veteran and his representative tending to link his current gastrointestinal disorder to his service. While the Board does not doubt the sincerity of these statements, the medical evidence of record does not support such a conclusion. In addition, where, as in this case, the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 292, 294-95 (1991). Further, since the record does not reflect that the veteran or his representative possess the medical training and expertise necessary to render an opinion as to etiology or the existence of a disability, these lay statements alone cannot serve as a sufficient predicate upon which to find the veteran's claim for service connection to be well grounded. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). As a final consideration, the Board notes that as the veteran has failed to meet his initial burden of submitting evidence which would well ground his claim of service connection for gastroesophageal reflux disease with peptic esophagitis, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. See Epps v. Gober, 126 F. 3d 1464, 1468 (1997). Giving the benefit of the doubt to a claimant does not relieve the claimant of carrying the burden of establishing a "well grounded" claim, and thus, there is nothing in the text of section 5107 to suggest that the VA has a duty to assist the claimant until he or she meets his or her burden of establishing a "well grounded" claim. See 38 U.S.C.A. § 5107(a) (West 1991); see also Epps, supra. The Board is not aware of any circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claim on appeal "plausible". See generally McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to present a well-grounded claim of service connection for gastroesophageal reflux disease with peptic esophagitis, and the reasons for which his claim failed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence having been submitted, the claim of service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. New and material evidence having been submitted, the claim of service connection for tinnitus is reopened. Service connection for tinnitus is granted. New and material evidence having been submitted, the claim for service connection for gastroesophageal reflux disease with peptic esophagitis is reopened; the appeal is granted to this extent only. Evidence of a well-grounded claim not having been submitted, service connection for gastroesophageal reflux disease with peptic esophagitis is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals