Citation Nr: 1515560	
Decision Date: 04/10/15    Archive Date: 04/21/15

DOCKET NO.  13-05 519	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in New York, New York



THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus.

2.  Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. W. Loeb, Counsel


INTRODUCTION

The Veteran served on active duty from September 1963 to December 1963 and from March 1964 to November 1964. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  

The December 2012 Statement of the Case denied the claim for entitlement to service connection for tinnitus on a de novo basis.  The Board notes, however, that even if the RO determined that new and material evidence was presented to reopen the claim for service connection for tinnitus, such is not binding on the Board, which must first decide whether evidence has been received that is both new and material to reopen the claim.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The Veteran was notified by letter in October 2013 that he was scheduled to testify at a video conference hearing before a Veterans Law Judge on December 3, 2013 but the Veteran did not report and no good cause has been shown.  Consequently, the request for a personal hearing is considered withdrawn.  See 38 C.F.R. § 20.704(d) (2014).

The reopened issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The claim for entitlement to service connection for tinnitus was denied by rating decision in October 2009; the Veteran did not timely appeal, and no new and material evidence was submitted within the appeal period.

2.  Evidence received since the October 2009 rating decision is new, relates to an unestablished fact necessary to sustain the claim, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus.


CONCLUSIONS OF LAW

1.  The October 2009 rating decision is final.  38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009); currently, 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).  

2.  Evidence submitted since October 2009 to reopen the claim of entitlement to service connection for tinnitus is new and material; therefore, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify a claimant of information and evidence necessary to substantiate the claim and redefined its duty to assist in obtaining such evidence.  38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2014). 

In this case the Board is granting the Veteran's request to reopen the previously denied claim for service connection for tinnitus.  Given the favorable disposition of this issue, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).


Analysis of the Claim

The Veteran seeks to reopen a claim of service connection for tinnitus, which it is contended was incurred as a result of either his military service or his service-connected hearing loss.  Service connection for hearing loss was granted by rating decision in February 2009, and a 0 percent rating was assigned effective November 13, 2007.

In general, unappealed rating decisions are final.  See 38 U.S.C.A. § 7104.  A final decision cannot be reopened unless new and material evidence is presented.  Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim.  

"If new and material evidence is presented or secured with respect to a claim that has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim."  See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Knightly v. Brown, 6 Vet. App. 200 (1994).  

"New" evidence means existing evidence not previously submitted to agency decisionmakers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated 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.  Id.  
In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  There must be new and material evidence as to any aspect of the Veteran's claim that was lacking at the time of the last final denial in order to reopen the claim.  See Evans v. Brown, 9 Vet. App. 273 (1996).  Consequently, there would need to be evidence that the Veteran currently has a psychiatric disability due to service.  

The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Entitlement to service connection for tinnitus was denied by rating decision in October 2009 because the evidence does not show that tinnitus was incurred in or caused by service.  There is evidence on file indicating that the Veteran was notified of the denial.  This decision was not timely appealed nor was any new and material evidence submitted within the appeal period.  

The evidence on file at the time of the October 2009 rating decision consisted of the Veteran's service treatment records, February to June 2008 VA treatment records, and a January 2009 VA evaluation report.  

The Veteran's service treatment records do not reveal any complaints or clinical findings of tinnitus.  According to VA treatment records dated from February to June 2008, the Veteran complained of occasional tinnitus.  According to a January 2009 VA evaluation report, which included review of the record, the Veteran had hearing loss but did not report any tinnitus. 

Evidence received since October 2009 includes an August 2010 VA evaluation report, a February 2013 statement from the Veteran, VA treatment records dated through January 2014, and a December 2014 audiological evaluation.   

The veteran noted in February 2013 that he had had tinnitus since 2005.

The Board has reviewed the evidence received into the record since the October 2009 rating decision and finds that new and material evidence has been submitted sufficient to reopen the claim for service connection for tinnitus.    

The February 2013 statement from the Veteran is new because it has not previously been received by VA, and it is material because it indicates that the Veteran continues to have problems with tinnitus.  This statement relates to the element of whether the Veteran has tinnitus during the appeal period as a result of service or due to service-connected hearing loss.  As such, this statement raises a reasonable possibility of substantiating the claim for service connection for tinnitus, as this evidence bears upon one element of a claim for service connection.


ORDER

New and material evidence having been received, the Veteran's claim for entitlement to service connection for tinnitus is reopened; and to that extent only, the appeal is granted.


REMAND

New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus.  The Board finds, however, that adjudication of the reopened claim on a de novo basis is inappropriate at this juncture.  

Although it was noted on VA evaluation in December 2014 that the Veteran did not have any current complaints of tinnitus, service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

The Veteran has complained of occasional tinnitus that began after service separation.  Although a VA nexus opinion was obtained in August 2010, this opinion concluded that, based on the available information, it would be speculative to opinion on the etiology of the Veteran's tinnitus.  The examiner did not opine as to whether the Veteran has had tinnitus during the appeal period secondary to his service-connected hearing loss.  

in Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims (Court) held that where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion."  Consequently, the Board finds that additional development is warranted in this case prior to final adjudication.

Accordingly, the case is REMANDED for the following actions:

1.  The AMC/RO will send the record to an appropriate medical professional for an opinion on the etiology of the Veteran's tinnitus.  The VA evaluator should be asked to review the evidence of record, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran tinnitus began in service, was cause by service, or is otherwise related to his active military service 

If the above opinion is negative, the examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus was caused or aggravated by his service-connected hearing loss disability.

Aggravation is defined as a permanent worsening beyond the natural progression of the disease.

If it is determined that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2014).  However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary.  The record, including a copy of this remand, must be made available to the reviewer/examiner in conjunction with the evaluation. 

The evaluator is advised that the term as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to finds in favor of service incurrence or causation as to find against such matters.  More likely and as likely support the contended causal relationship; less likely weighs against the claim.

If the evaluator responds to the above inquiry that he or she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion 
non-speculative and to obtain such evidence.  In other words, in light of Jones, the reviewer must clearly identify precisely what facts cannot be determined, [i.e.] whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes and also identify what would be needed in order to provide an opinion.

A complete rationale must be provided for any opinion offered.

2.  After the above, the AMC/RO will re-adjudicate the Veteran's claim for service connection for tinnitus based on all of the evidence of record.  If the benefit sought on appeal remains denied, the Veteran and his representative will be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for a response.  

The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs