Citation Nr: 1320232 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-41 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran has verified service in the Air National Guard from 1973 to 1979, including a period of active duty for training (ADT) from August 1973 to December 1973; she has subsequent unverified service in the Army Reserves until 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 decision of the Department of Veterans Affairs (VA) regional office (RO) located in Houston, Texas. By way of background, RO decisions dated in January 1990, September 1990, November 1990 (two), and March 1991 denied the Veteran's claim for service connection for tinnitus on the merits. The Veteran appealed to the Board, and a July 1991 Board decision denied the Veteran's claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and an August 1992 Court order granted VA's motion for summary judgment. RO decisions dated in August 1994 and June 1998 denied the Veteran's applications to reopen her claim. The Veteran again appealed to the Board, and an October 2000 Board decision denied her application to reopen her claim. The Veteran again appealed to the Court, and VA filed a motion to vacate and remand the appeal (regarding the VCAA), which motion was granted by way of an April 2001 Court order. A June 2002 Board decision again denied the Veteran's application to reopen her claim. The Veteran again appealed to the Court, and a June 2003 Court order granted the parties motion to vacate and remand the appeal. A November 2003 Board decision reopened and remanded the Veteran's claim. A subsequent March 2005 Board decision denied the Veteran's claim on the merits. The Veteran again appealed to the Court, and a July 2007 Court decision affirmed the March 2005 Board decision. In August 2007, the Veteran filed another application to reopen her claim, which was denied by way of the December 2007 RO decision appealed herein. Despite a determination by the RO to reopen a claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. With regard to the Veteran's application to reopen her claim of entitlement to service connection for tinnitus, for the reasons discussed below, the Board has determined that new and material evidence has been received, and the claim is reopened. The claim for service connection for tinnitus is reopened, and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 2007 Court decision affirmed a March 2005 Board decision that denied the Veteran's reopened claim for service connection for tinnitus on the merits; the Veteran did not appeal, and the July 2007 Court decision became final. 2. Evidence received since the July 2007 Court decision is not cumulative and redundant, and raises a reasonable possibility of substantiating the claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The unappealed July 2007 Court decision that affirmed the March 2005 Board decision denying the Veteran's claim of service connection for tinnitus is final. See 38 U.S.C.A. §§ 7291, 7292 (West 2002). 2. Since the unappealed July 2007 Court decision, new and material evidence sufficient to reopen the Veteran's claim of service connection for tinnitus has been received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Board has granted herein and remanded for further development the Veteran's application to reopen her previously denied claim of entitlement to service connection for tinnitus, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis New evidence means 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 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) (2012). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). This generally includes injuries or diseases incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT). See 38 U.S.C. § 101(24), 106(d). The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for tinnitus. After a review of the evidence of record, the Board finds that new and material evidence has been received. By way of background, RO decisions dated in January 1990, September 1990, November 1990 (two), and March 1991 denied the Veteran's claim for service connection for tinnitus on the merits. The Veteran appealed to the Board, and a July 1991 Board decision denied the Veteran's claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and an August 1992 Court order granted VA's motion for summary judgment. RO decisions dated in August 1994 and June 1998 denied the Veteran's applications to reopen her claim. The Veteran again appealed to the Board, and an October 2000 Board decision denied her application to reopen her claim. The Veteran again appealed to the Court, and VA filed a motion to vacate and remand the appeal (regarding the VCAA), which motion was granted by way of an April 2001 Court order. A June 2002 Board decision again denied the Veteran's application to reopen her claim. The Veteran again appealed to the Court, and a June 2003 Court order granted the parties motion to vacate and remand the appeal. A November 2003 Board decision reopened and remanded the Veteran's claim. A subsequent March 2005 Board decision denied the Veteran's claim on the basis that there was no competent medical evidence linking her reported tinnitus to her service. The Veteran again appealed to the Court, and a July 2007 Court decision affirmed the March 2005 Board decision. In August 2007, the Veteran filed another application to reopen her claim, which was denied by way of the December 2007 RO decision appealed herein. At the time of the July 2007 Court decision, the evidence of record included the Veteran's service treatment records, VA treatment records dated from April 1999 to September 2005, VA examinations dated in December 1989 and August 2004, treatment records from the Public Health Service Hospital in New Orleans, Louisiana (PHS) dated from January 1979 to May 1981 (she was apparently employed there around that time, see November 1989 Form 21-2545), an August 1998 lay statement from the Veteran's mother attesting that the Veteran reported ringing in her ears for 18 years, and private treatment records and correspondence dated from October 1986 to September 2005 from S.S. (clinic unknown), J.C. of the Joachin Hearing and Speech Center, Methodist Hospital, EENT, Ochsner (including from A.M.), and Dr. F.L. A June 1980 PHS treatment record reflects diagnosed purulent otitis media, right ear. A May 1981 PHS treatment record reflects findings of ear pain, purulent drainage, and right ear extreme edema, and diagnosis of otitis media and right ear "otitis edema" (but no complaints of tinnitus were noted). Several of the post-service VA and private treatment records reflect diagnosed cerumen impaction and tinnitus, but none include any etiological opinion regarding her reported tinnitus. See, e.g., EENT Record, October 1989; Methodist Hospital, October 1986; see also EENT, January 1998 (A.M.). Also, an April 1999 VA treatment record reflects that the Veteran reported a several year history of tinnitus since a clinician cleaned her ear out at Ft. Riley with a cerumen spoon; findings including a reddened area and small white scar on her tympanic membrane and a diagnosis of cerumen impaction were recorded. Since the time of the final July 2007 Court decision, new evidence associated with the claims file includes, but is not limited to, private treatment records and correspondence dated from August 2007 to October 2009 from A.P. (AuD) of North Houston Hearing Solutions, and from Dr. R.P. An October 2009 physician statement from A.P. reflects that she noted the Veteran's reported history of having her ears cleaned with a wire loop at Ft. Riley, Kansa, and that she experienced tinnitus ever since. A.P. checked a box on the form indicating that the Veteran's tinnitus is possibly related to her service. As shown above, the new evidence of record includes an October 2009 statement from an audiologist opining that the Veteran's tinnitus is possibly related to her reported ear cleaning incident in service. Therefore, presuming the credibility of the opinion for the purposes of reopening, the Board finds that new and material evidence has been received that relates to an unestablished fact necessary to substantiate the claim (e.g., a link to the Veteran's service). Therefore, the claim is reopened. Before the Board may make a decision on the Veteran's claim, however, further development is necessary, as explained in the remand section below. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for tinnitus has been received; to that extent only, the appeal is granted. REMAND The Veteran claims that she has tinnitus due to an injury she incurred in August 1979 during a period of active duty or inactive duty for training when her ears were cleaned with a cerumen spoon during a routine physical. See Form 21-526, August 1989; VA Examination Report, December 1989 (injured in 1979). The Board acknowledges that she has also cited August 1980 as the date of the alleged injury, and that she was on active duty for training at that time, but it is not entirely clear whether this time frame for the alleged injury was in error. See, e.g., Form 21-526, May 1994. In other statements, she asserts that she was in the 355th General Supply and Support Unit with the Army Reserve at the time of the injury, doing officer's training in the summertime with the Loyola University New Orleans Army ROTC program. See Statements, April 2004, October 2001. As a preliminary matter, the Board finds that clarification is required as to the Veteran's service in both the Air National Guard and the Army Reserve. The Veteran reports that she had service in the Air National Guard from August 1973 to August 1977, at which time she immediately entered the Army Reserve, where she remained until 1981. She has further stated, referable to the Army Reserve service, that she was first in the 692nd Maintenance Battalion from 1977 to 1978, and then in the 355th General Supply and Support Unit from 1978 to 1981. See, e.g., Form 21-526, August 1989; Statement, October 1990. The RO has attempted to verify the Veteran's service; however, upon close review, those attempts have not been complete. Initially, in June 1990, the RO requested that the National Personnel Records Center (NPRC) verify service in the Air National Guard from August 1973 to August 1979. The response only confirmed active duty for training from August 1973 to December 1973. The service treatment records of record include Army Reserve examination reports and reports of medical history dated in May 1977 and October 1979. The October 1979 report of medical history, in particular, reflects that the physician indicated that the Veteran had a prior honorable discharge from the Air National Guard in 1976. In October 1990, the RO requested copies of the Veteran's service records from the 355th General Supply and Support Unit of the Army Reserves, to include possible treatment in 1980, but a negative reply was received later that month. Likewise, several attempts to obtain records from Irwin Army Medical Center at Fort Riley, Kansas resulted in negative replies. Despite all of these efforts, it does not appear that the RO requested verification of the Veteran's reported service between 1979 and 1981 from the Army Human Resources Personnel Command. Likewise, no additional requests were ever made to verify any of the Veteran's service in the Air National Guard, such as to the Veteran's last unit or the Air Reserve Personnel Center (as the June 1990 and October 1990 requests related to the Veteran's reported service in the Army Reserves only). In light of the above, and in light of VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) and its progeny since the last time this case was before the Board, the Board finds that a remand is necessary so that copies of the Veteran's service personnel records may be obtained from all appropriate sources, including NPRC, the Army Reserve Personnel Command, and the Air Reserve Personnel Center, and also for verification of her dates of ADT, and IDT in the Air National Guard and Army Reserves. See 38 U.S.C.A. § 5103A (West 2002). In addition, the Veteran has requested on several occasions that her cadet reservist records be requested from the Loyola University New Orleans ROTC program. See Statements, March 1991, November 1990, February 1991, October 2001. Moreover, a March 1991 reply from the Army Medical Department at Ft. Riley (in response to a request for the Irwin Hospital records where the ear injuries allegedly occurred) reflects that they reported that copies of her hospital treatment records were forwarded to the school's ROTC program, and that the hospital only maintained copies for two years. No request has ever been made, however, to obtain copies of the Veteran's records from the Loyola University ROTC program. Therefore, the Board also finds that a remand is also necessary so that copies of any outstanding ROTC records, including any treatment records, may be obtained. See 38 U.S.C.A. § 5103A (West 2002). As a final matter, while the October 2009 opinion was sufficient to reopen the previously denied claim, the Board finds that it does not rise to the level of probability required to grant the benefit sought on appeal. In particular, it indicated that the Veteran's tinnitus was "possibly related" to her service. The standard by which medical opinions are considered sufficient is that of "as likely as not." That term does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the Veteran's claim that does little more than suggest a possibility that the illness might have been caused by service is insufficient to establish service connection). The Veteran was last provided with a VA examination in August 2004. The VA examiner offered a negative opinion, noting that she saw no scar or pathology to substantiate the Veteran's claim relating to the alleged injury with the cerumen spoon in 1979 or 1980. The examiner also considered her reported noise exposure during rifle training. Subsequently, the Veteran submitted a copy of an April 1999 VA treatment record reflecting that her tympanic membranes were occluded bilaterally with dry cerumen, but after washing, the right tympanic membrane appeared retracted with a reddened area, and a small white scar at about one o'clock on her right tympanic membrane was visualized. Based thereon, the Board finds that a remand is necessary to provide the Veteran with a new VA examination, including for a review of the April 1999 VA treatment record and the new, October 2009 attempted nexus opinion. Accordingly, the case is REMANDED for the following action: 1. Request copies of all of the Veteran's service personnel records relating to her Air National Guard service, including a request for verification of all periods of active duty, ADT, and IDT, from all appropriate sources, including but not necessarily limited to the Veteran's unit, NPRC, and the Air Reserve Personnel Center. Please note that the Veteran reports that her service in the Air National Guard was from August 1973 to August 1977 in the 214th Electronics Installation Unit in New Orleans, Louisiana. See Statement, October 1990. At the same time, also please note that there is a contradictory record in the claims file indicating that her service in the Air National Guard was until August 1979. If any of these records are found to be unavailable, this should be specifically noted in the claims file. Also please note that in July 1981, the Veteran was married and as a consequence, her name changed to Barbara C. Hamilton (such that requests for her records should not both names Barbara L. Carter and Barbara C. Hamilton). 2. Request copies of all of the Veteran's service personnel records relating to her reported service in the Army Reserve from August 1977 to 1981, including a request for verification of all periods of active duty, ADT, and IDT, from all appropriate sources, including but not necessarily limited to NPRC and the U.S. Army Human Resources Command. If any of these records are found to be unavailable, this should be specifically noted in the claims file. Please note that in July 1981, the Veteran was married and as a consequence, her name changed to Barbara C. Hamilton (such that requests for her records should not both names Barbara L. Carter and Barbara C. Hamilton). 3. Request copies of the Veteran's cadet/ROTC records, including all medical records, dated either in the summer of 1979 or the summer of 1980 from the Loyola University New Orleans. To that end, provide the Veteran with a Form 21-4142 for completion. 4. After all of the above development has been completed, schedule the Veteran for a VA examination with an appropriate physician to determine the current nature and the etiology of her tinnitus. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Special attention is invited to the Veteran's right ear tympanic membrane, to determine whether a scar exists at about one o'clock. Based on the examination, the examiner is asked to opine as to whether it is at least as likely as not (meaning likelihood of at least 50%) that the Veteran's tinnitus is related to her a) reported noise exposure during rifle training, and b) her reported injury due to a cerumen spoon in 1979 or 1980 at Irwin Army Hospital. Review of the entire file is required; however, attention is invited to the April 1999 VA treatment record reflecting a finding of a right ear tympanic membrane scar; the August 2004 VA examination and opinion; and, the October 2009 attempted nexus opinion. An explanation of the underlying reasons for any opinion expressed is required. 4. Then, readjudicate the Veteran's claim. If her claim remains denied, she should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs