Citation Nr: 1414198 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-23 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence was received to reopen a claim of entitlement to service connection for bilateral hearing loss and whether the reopened claim should be granted. 2. Whether new and material evidence was received to reopen a claim of entitlement to service connection for tinnitus and whether the reopened claim should be granted. 3. Entitlement to service connection a low back disability. 4. Entitlement to service connection for an upper back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from February 2002 to October 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2008, October 2008 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The April 2008 decision denied service connection for a back injury and the October 2008 rating decision continued that denial, and declined to reopen the Veteran's previously denied claims for service connection for bilateral hearing loss, tinnitus, and a left ankle injury. The June 2010 decision denied entitlement to service connection for an upper back (cervical spine/neck) disability. The Veteran withdrew his appeal of the denial of service connection for a left ankle injury during his March 2010 hearing at the RO and perfected an appeal as to the RO's remaining actions (his hearing testimony constituted a substantive appeal with regard to the upper back issue). In July 2012, the Veteran testified during a hearing at the RO before the undersigned. Transcripts of his hearings are of record. In the June 2011 statement of the case, the RO explicitly considered the claims for service connection for bilateral hearing loss and tinnitus as reopened. But, before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board must, however, make an independent determination as to whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In April 2008 and January 2009, the Veteran submitted a claim for a temporary total rating based upon convalescence pursuant to 38 C.F.R. § 4.30 for his left ankle. In December 2008, the Veteran submitted a claim for service connection for a bilateral hip disability. The RO has not yet adjudicated these claims. Both matters are referred to the RO for further development and adjudication. In June 2013, the Board received private treatment records, dated from October 2003 to August 2010, pertinent to the Veteran's case. The records are duplicative of those previously received by the RO. Thus, the Board may proceed to consider his appeal. 38 C.F.R. § 20.1304(b) (2013). The reopened claim for service connection for bilateral hearing loss and the claim for service connection for a back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A May 2006 rating decision denied service for tinnitus and bilateral hearing loss; the Veteran did not appeal this determination and no new and material evidence was received within one year of its issuance. 2. The evidence added to the record since the May 2006 decision that denied the claims for service connection for tinnitus and bilateral hearing loss raises a reasonable possibility of substantiating the claim. 3. Current tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The May 2006 rating decision denying the claims of entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. The evidence received since the May 2006 RO decision is new and material and the claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A May 2006 rating decision denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus, finding that there was no evidence of audiometric findings that met the criteria for service connection for defective hearing and service treatment records did not show treatment for, or diagnosis of, tinnitus. The Veteran was notified in writing of the RO's May 2006 determination and his appellate rights but did not appeal. Moreover, new and material evidence was not received within one year of its issuance to preclude finality pursuant to 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Hence, the May 2006 decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A claim will be reopened if new and material evidence is received. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). An application to reopen the appellant's claim was received in April 2008. The evidence added to the record since the May 2006 rating decision includes VA and non-VA medical records and examination reports, dated from 2007 to 2010, and the Veteran's and others' written statements, and his testimony. A May 2011 VA audiology examiner found that the Veteran had clinically normal hearing and that tinnitus was less likely than not caused by his military service. But, during his July 2012 Board hearing, the Veteran testified that he first noticed that he had tinnitus right after his first tour to Iraq in 2003. See Board hearing transcript at page 11. He did not receive any medical treatment for it but reported having constant tinnitus since service that worsened. Id. at 12. The Veteran further testified that he believed his hearing had worsened since his last VA examination and describe difficulty hearing with background noise. Id. at 10. His testimony relates to the previously unestablished elements of a current hearing loss disability and a link between current tinnitus and service. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, 24 Vet. App. at 117-20. II. Service Connection Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records include a January 2004 Post-Deployment Questionnaire on which the Veteran checked yes to having ringing in his ears and reported that he was "often" exposed to loud noises. Thus an in-service disease or injury is established. The May 2011, examination together with the Veteran's testimony establishes a current disability. While the VA examiner provided a negative nexus opinion; this was based on a conclusion that the reported tinnitus at service separation was not uncommon in healthy auditory systems that were not exposed to noise. The rationale did not support a conclusion that current tinnitus was unrelated to service. In this case, the service treatment records include the Veteran's complaint of ringing in his ears. The post service evidence includes his credible statements to the effect that he developed tinnitus after his first tour of duty in Iraq in 2003. There is no basis for discrediting such lay evidence. Thus, the record is at least in equipoise as to an in-service incurrence of tinnitus problems. The elements of service connection are established and service connection is granted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. at 55-56. ORDER New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. New and material evidence has been received to reopen the claim for service connection for tinnitus. Service connection for tinnitus is granted. REMAND The Board's finding of new and material evidence to reopen the hearing loss claim, entitles him to a new VA examination. Shade. In support of his back claims, he reports that, in October 2003, while on leave, he sought chiropractic treatment for back pain. He points to an October 15, 2003 private chiropractic record noting his complaint of neck and upper and lower back pain and occasional headaches. Service treatment records include a November 10, 2003 clinical entry reflecting the Veteran's complaint of back pain and his recent chiropractic treatment. On the January 2004 Post-Deployment Questionnaire, the Veteran checked yes to having back pain, muscle aches, numbness and tingling in the hands or feet. He reported that he was "often" exposed to loud noises. On a Report of Medical History, completed in September 2005, the Veteran checked yes to having hearing loss, recurrent back pain or any back problem, and numbness or tingling. It was noted that he underwent surgical removal of a back cyst at Fort Hood, Texas, hospital. When examined at that time, his spine was normal. A later-dated September 27, 2005 clinical evaluation does not discuss complaints or findings regarding hearing or back problems. Post service, VA and non-VA medical records include the Veteran's complaints of low and upper back pain, headaches, and paresthesias in his hands. See e.g., February 2006 VA examination report diagnosing lumbar strain; October 6, 2006 VA radiology report of a magnetic resonance image (MRI) of the lumbar spine showing a slight disc bulge at the L4-5 level; October 31, 2006 private physical therapy record showing a history of pain since 2003; June 20, 2008 VA Pain Clinic record; February 2008 private hospital records regarding treatment for headaches; and September 22, 2010 VA outpatient record regarding upper and lower back pain and hand paresthesias. In June 2011, a VA physician reportedly reviewed the record diagnosed mechanical low back pain and opined that the Veteran's low back and neck pain were not caused by military service or a service-connected right ankle injury. She reasoned that there was no evidence when he was in service that he complained of back pain, even after his ankle injury. The examiner observed that the Veteran was in a significant motor vehicle accident in 2007 for which he repeatedly sought chiropractic care and complained of neck and back pain. Records in the claims file document chiropractic treatment for low back complaints in 2003 with pertinent finding in service treatment records in October 2003; and complaints of back pain, in the January 2004 Post Deployment Questionnaire. The record shows complaints of numbness and tingling in the hands at the time of his separation from service. As the June 2011 opinion was based on an inaccurate history, it is inadequate. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Thus, a new opinion is required. The Veteran testified that he received treatment for low back and neck complaints beginning in 2006 at the VA Medical Center in Big Springs, Texas. He has submitted some records of this treatment, but it does not appear that all records have been obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of the Veteran's VA treatment for back, neck, and hearing disabilities since 2006; including all records of his treatment for back disaiblties at the VAMC in Big Springs, Texas in 2006 and 2007. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(e) (2013). 2. Schedule the Veteran for a VA examination performed by a physician with to determine whether the current upper and lower back disabilities are related to service, including the documented complaints in service. Is it at least as likely as not (a 50 percent or higher degree of probability) that the current lower and upper back disabilities are the result of a disease or injury in active service, or had its onset in such service (including the notations in the October 2003 private chiropractic record noting upper back and neck pain; the November 2003 service treatment record noting back pain, and the January 2004 Post-Deployment Questionnaire, noting complaints of back pain, muscle aches, and numbness and tingling of the hands or feet). The examiner should provide reasons for this opinion. The examiner should discuss the Veteran's post service reports of symptoms and treatment. The Veteran is competent to report symptoms and observable history. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should be provided. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Schedule the Veteran for VA examination to determine whether any bilateral hearing disorder is related to service. The examiner should review the claims file. a. Does the Veteran have bilateral hearing loss disability? b. If so, is it at least as likely as not (a 50 percent or higher degree of probability) that hearing loss dis the result of a disease or injury in active service, or had its onset in such service, including the notations in the Veteran's January 2004 Post-Deployment Questionnaire (noting ringing in his ears and that he was often exposed to loud noise). The examiner should presume that the Veteran had noise exposure in service and that reports of hearing loss after combat noise exposure are valid. The examiner should provide reasons for the opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should be provided. The absence of evidence of treatment for a hearing disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 2. If the claims remain denied, issue a supplemental statement of the case. Then return the appeal to the Board, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs