Citation Nr: 1802251 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-13 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to August 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and a back disability are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. FINDINGS OF FACT 1. In a July 2001 decision, the RO denied service connection for tinnitus; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. In a July 2001 decision, the RO denied service connection for a back disability; the Veteran did not timely initiate an appeal of that decision within one year of notification. CONCLUSIONS OF LAW 1. The July 2001 RO decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for tinnitus have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156(a) (2017). 3. The July 2001 RO decision that denied service connection for a back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1103 (2017). 4. The criteria for reopening a claim of entitlement to service connection for a back disability have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Tinnitus and Lumbar Spine Claims Prior to the filing of the current claim of entitlement to service connection for a low back disability and tinnitus, the AOJ previously denied these claims in July 2001. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2017). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (West 2014); 38 C.F.R. § 19.30 (2017). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b) (2017). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2017). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32 (2017). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Tinnitus The AOJ first denied service connection for tinnitus in a July 2001 decision because the Veteran did not have a current disability. Specifically, the July 2001 decision acknowledged that service treatment records show possible acoustic trauma in service however denied the claim finding there was no evidence which demonstrates current disability related to service. No relevant evidence was received within one year of that decision and the Veteran did not appeal the decision to the Board. Thus, that decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Relevant evidence submitted since the July 2001 decision includes a VA examination afforded in August 2013 with a medical opinion and diagnosis for tinnitus. As this new evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for tinnitus is warranted. B. Back The AOJ first denied service connection for a back disability in a July 2001 decision because the Veteran did not have a current back disability. Specifically, the July 2001 decision acknowledged that service treatment records show treatment for low back pain in service however denied the claim finding there was no evidence which demonstrates current disability related to service. No relevant evidence was received within one year of that decision and the Veteran did not appeal the decision to the Board. Thus, that decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Relevant evidence submitted since the July 2001 decision includes a VA examination afforded in September 2013 with a medical opinion and diagnosis for lumbar degenerative disc disease. As this new evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for a back disability is warranted. ORDER The claim of entitlement to service connection for tinnitus is reopened, and to that extent only, the appeal is granted. The claim of entitlement to service connection for a back disability is reopened, and to that extent only, the appeal is granted. REMAND After a review of all evidence, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claims for entitlement to service connection for a back disability, bilateral hearing loss, and tinnitus, to include obtaining a medical opinion. In his April 2014 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran asserts that during active service he was diagnosed with bilateral hearing loss, tinnitus, and a low back condition. A. Bilateral Hearing Loss and Tinnitus Claims Here, the August 2013 VA-contracted audiology examination report reveal that the Veteran has been diagnosed as having bilateral sensorineural hearing loss; however, audiometric testing results identified hearing loss as defined by VA regulation in the right ear but not in the left ear. The examination report indicates that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report reflects the Veteran's military occupational specialty (MOS) was engineer of generators and he reported in-service noise exposure consistent with his duties as an engineer, described as exposure to radars and batteries and he also reported utilizing hearing protection. According to the Veteran's reports, the examination report indicates post-service occupational noise exposure to consist of working in machine shops with hearing protection. Audiologic testing performed at the August 2013 examination shows current bilateral hearing loss disability and reflected that the Veteran does meet VA's regulatory requirements for right ear hearing loss disability but does not for left ear hearing loss disability. The examiner opined that it was less likely than not that current right ear hearing loss was related to military service. In so finding, the examiner acknowledged the Veteran's reports that he was exposed to significant noise levels while in service related to radars and batteries but that the Veteran did not have hearing loss while in service. The examiner indicated that review of service treatment records noted normal hearing loss and no significant changes in hearing thresholds in service as indicated on several audiometric testing results dated in June 1971, February 1972, January 1973, July 1974, February 1975, and May 1976 and therefore current hearing loss is less likely as not caused by or related to event in military service. (Notably, the August 2013 examination report notes a normal audiometric testing results on February 12, 1972. The Board notes that associated with claims file is normal audiometric testing results dated on January 12, 1972 and not February 12, 1972.) Concerning tinnitus, the examination report reflects the Veteran reported that he is unsure of the exact date of onset but he has heard it since military service. He also reported experiencing tinnitus approximately once every 2 weeks for a duration of 10 seconds. The examiner opined current tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner's rationale was that these symptoms are not an abnormal occurrence in the general population of people who have not been exposed to noise and there were no significant changes in hearing during military service. Additionally, VA treatment records note bilateral hearing loss on the problem list as well as treatment for hearing aids. Specifically, an August 2014 audiology consult shows the Veteran was referred for hearing evaluation. The consult notes the Veteran reported that he had a hearing evaluation outside of VA but does not have the results. The Veteran was diagnosed with bilateral hearing loss, however the complete audiometric testing results were not documented. There is no further discussion on the hearing evaluation performed outside of VA. With the exception of the August 2013 VA-contracted evaluation and the August 2014 VA evaluation, there is no indication in the claims file that any private audio evaluations or otherwise have been submitted by the Veteran or his representative, or requested by the AOJ. Although the Veteran was afforded a VA-contracted hearing loss and tinnitus examination in August 2013, based on receipt of the above outstanding records, the AOJ should seek an addendum opinion from the examiner to consider additional evidence added to the claims file since the August 2013 examination. Accordingly, prior to arranging for further medical opinion, to ensure that all due process requirements are met, and the record is complete, the AOJ must undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. 38 C.F.R. § 3.159. In this regard, adjudication of the claim for service connection for bilateral hearing loss, may impact adjudication of the claim for entitlement to service connection for tinnitus. Consequently, this issue is inextricably intertwined with the service connection claim for bilateral hearing loss, a remand of that issue is warranted as well. See Parker v. Brown, 7 Vet. App. 116, 118-19 (1994) (stating that two issues are inextricably intertwined when they are so closely tied together where development of one could have a "significant impact" on the other). B. Back Claim The Veteran's service treatment records show that he presented with complaints of low back pain on multiple occasions. First, service treatment records dated in December 1971 and January 1973 show the Veteran presented with low back pain that radiates down both legs when he bends over to pick up anything. He reported injuring his back one year earlier while lifting and having problems since that time. Examination of the spine revealed tenderness at L4-5. X-rays conducted in January 1973 identified sclerotic changes and blurring of joint space at L4-5. The examiner diagnosed residuals of disc disease at L4-5. The Veteran was placed on 30 day profile with limitations to include no bending or lifting. He also reported cracking and popping. A subsequent March 1973 service treatment record notes an impression of low back pain. Further noting that physical profile can be done as needed. An October 1973 service treatment record shows the Veteran presented with recurrent low back pain similar to pain in the past with no improvement. Repeat lumbar spine x-rays in November 1973 were determined as unchanged since the last January 1973 x-rays, which identified a normal spine. It is noted that he experienced pain with heavy lifting a few days earlier. The examiner's notes indicate the impression was chronic low back pain. An August 1974 service treatment record notes back pain possibly related to disc injury. The Veteran was referred to Dr. Borota with additional notes of treatment to include medication and back exercises. A May 1975 orthopedic note indicates evaluation of low back pain as a possible disc injury. A subsequent June 1976 service treatment record indicates a history of pain. Examination revealed full range of motion of the lumbar spine and x-rays identified mild degenerative changes-facets at L5-S1. The Veteran was afforded VA back examination in September 2013 to determine the etiology of current back disability. September 2013 x-rays identified degenerative spine changes identified as mild disc space narrowing at L5-S1, advanced disc space narrowing at L1-L2 and L2-L3, anterior spondylosis, and moderate facet arthroplasty. The resulting examination report indicates the examiner opined that the Veteran's back condition is less likely than not (less than 50 percent probability) incurred in or caused by the in service injury, event, or illness. The rationale was that the Veteran had two episodes during military service of low back pain with x-rays taken both times and there are no other episodes of back pain noted in the records. Therefore, it is less likely than not that degenerative disc disease was incurred in or caused by active duty episodes of back pain or disc injury. As discussed above, the Veteran's service treatment record documents that on several occasions, the Veteran sought treatment for impairment of the back manifested by pain and x-ray findings identified mild degenerative changes-facets at L5-S1 and residuals of disc disease at L4-5. Hence, the negative nexus opinion provided by the August 2013 examiner and based on the examiner's conclusion that the Veteran had two episodes during military service of low back pain with x-rays taken both times and there are no other episodes of back pain noted in the records, is inaccurate. Thus, it is unclear whether or not the examiner reviewed the entire claims file in support of these findings. In view of the above-noted deficiencies, the Board finds that the medical evidence of record is still not sufficient to resolve these claims, and that, remand of these matters to obtain an adequate opinion-based on full consideration of the Veteran's documented history and assertions, and the medical evidence, and supported by completely, clearly-stated rationale-is needed to resolve the claims for service connection. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.310 (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the sake of efficiency, the AOJ's adjudication of the claim should include consideration of all additional evidence received since the last adjudication in the March 2014 statement of the case that has not previously been considered-to include any records associated with the electronic claims file (in VBMS and Virtual VA) pursuant to this remand. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide information and authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record, to include any information related to where he received medical treatment for hearing loss and tinnitus disorders. 2. Provided the Veteran responds, assist herein obtaining any additional evidence identified, following the procedures set forth in 38 C.F.R. § 3.159 with regards to requesting records. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, return the claims file to the August 2013 VA-contracted examiner for preparation of an addendum opinion. The entire claims file, including a copy of this Remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. If the August 2013 examiner is not available, ensure that the Veteran is scheduled for an examination by another appropriate practitioner. The examiner must accomplish the following: (a) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that current hearing loss is related to the Veteran's military service; (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that current tinnitus is related to the Veteran's military service. The examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 4. Ensure that the Veteran is scheduled for a VA examination with regard to his claim involving service connection for a back disability. The examiner must review the claims file in conjunction with the examination and interview the Veteran as to the history of his back symptoms and treatment. After reviewing the file, the practitioner must accomplish the following: (a) Identify any back disability present during the period on appeal. The practitioner is directed to review the service treatment records reflecting the Veteran presented with complaints of back pain on several occasions, to include the January 1973 diagnosis of residuals of disc disease at L4-5 and the June 1976 diagnosis of lumbar spine, mild degenerative changes-facets at L5-S1. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified back disability present during the period on appeal is related to injury or event in service to include the January 1973 diagnosis of residuals of disc disease at L4-5 and the June 1976 diagnosis of lumbar spine, mild degenerative changes-facets at L5-S1, August 1974 report of low back pain with possible disc injury, October 1793 report of recurrent low back pain; and December 1971 report of low back pain. The examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 6. Then, readjudicate the claims that are the subject of this Remand. If any benefit sought is not granted in full, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and allow for an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (CONTINUED ON NEXT PAGE) appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs