Citation Nr: 1805846 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-35 492A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for residual right upper extremity hemiparesis, status post stroke, to include as secondary to a traumatic brain injury (TBI), and, if so, whether service connection is warranted. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a TBI. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: James M. McElfresh II, Agent ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1964. This appeal is before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In order to establish jurisdiction over the issue of service connection for residual right upper extremity hemiparesis, status post stroke, the Board must first consider whether new and material evidence has been received to reopen the claim. 38 U.S.C.A. § 5108 (West 2014). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. Subsequent to the most recent statement of the case, additional evidence has been added to the claims file. No waiver of Agency of Original Jurisdiction review (AOJ) was submitted; however, the Board finds the evidence was duplicative and/or irrelevant to the issues being decided herein. Thus, no waiver is required. See 38 C.F.R. § 20.1304 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for residual right upper extremity hemiparesis, status post stroke, to include as secondary to a TBI, entitlement to service connection for a TBI and entitlement to service connection for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed rating decision, dated in October 2009, the RO denied service connection for residual right upper extremity hemiparesis, status post stroke. 2. Additional evidence received since the October 2009 rating decision is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran's service connection claim for residual right upper extremity hemiparesis, status post stroke. 3. The Veteran does not have tinnitus. CONCLUSIONS OF LAW 1. The October 2009 rating decision denying service connection for residual right upper extremity hemiparesis, status post stroke, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. Evidence received since the October 2009 rating decision is new and material to the service connection claim for residual right upper extremity hemiparesis, status post stroke, therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307(a)(3), 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. New and Material The Veteran asserts his residual right upper extremity hemiparesis, status post stroke, is related to service. Specifically, claiming such disability was related to his in-service head injury. The RO denied the claim in October 2009, which found no evidence that the Veteran's current residuals of a stroke incurred were incurred or caused by service. As the Veteran did not file a timely notice of disagreement, or submit new and material evidence within one year, the October 2009 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. As noted above, the Board must address whether new and material evidence has been received sufficient to reopen the Veteran's service connection claim regardless of the RO's decision to reopen the claim. See Jackson v. Principi, supra. Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "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. The 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board notes that since the previous denial, the Veteran also claimed service connection for residual right upper extremity hemiparesis status post stroke secondary to a TBI. A piece of evidence submitted subsequent to the October 2009 rating decision includes a November 2011 private treatment record noting a magnetic resonance imaging (MRI) of the brain revealed advanced cortical volume loss and diffuse/multifocal areas of cystic encephalomalacia, "[f]indings most likely relate to a combination of previous traumatic brain injury, advanced small vessel ischemic changes and prior infarcts." The Board finds this statement relates to an unestablished fact, namely establishing a potential relationship between a current disability and previous traumatic brain injury, which the Veteran asserts is due to his in-service head injury. For the aforementioned reasons, the evidence for his claim of residual right upper extremity hemiparesis, status post stroke, is both new and material, and the claim must be reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. 3.156(a). Service Connection The Veteran filed a claim of entitlement to service connection for tinnitus. The regulations pertinent to the Veteran's service connection claim (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309) were provided to him in the 2014 statement of the case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. While the Veteran's representative asserts in an April 2012 statement that the Veteran currently suffered from tinnitus, all other evidence in the record reveals the Veteran denies ever experiencing tinnitus. Indeed, on his June 2012 application for compensation the Veteran states tinnitus as a disability, but below writes no ringing in ears. Additionally, December 10, 2007, and December 19, 2007, private treatment records note the Veteran denied tinnitus. The 2013 VA examiner indicated that the Veteran did not have recurrent tinnitus. The examiner noted that upon direct questioning, the Veteran did not report or describe tinnitus/head noise/ear sounds. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran does not have a current diagnosis of tinnitus. While a lay person is competent to report tinnitus, with the denials of such by the Veteran, it cannot be said that there is credible lay evidence of the presence of tinnitus. As there is no evidence of a current disability, there is no basis on which the claim for service connection may be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is therefore unnecessary to address any other element of service connection. Accordingly, the claim for service connection for tinnitus is denied. ORDER New and material evidence having been received, the claim of entitlement to service connection for residual right upper extremity hemiparesis status post stroke, to include as secondary to a TBI is reopened; the appeal is granted to this extent only. Service connection for tinnitus is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran claims service connection for a TBI and residual right upper extremity hemiparesis, status post stroke, to include as secondary to a TBI. The Board notes service treatment records reveal the Veteran suffered a head injury in October 1964, was hospitalized, and released after 23 days with a diagnosis of right frontal skull fracture and cerebral concussion. Post-service records reveal the Veteran suffered a stroke in December 2007. A December 2007 private treatment record notes a computerized tomography (CT) of the head revealed "moderate senescent volume loss and white matter changes with bifrontal encephalomalacic noted likely related to old trauma. There also may be an old infarct in the left brain stem." Additionally, a December 2007 MRI revealed acute left paramedian pontine infarct and encephalomalacia in the inferior frontal lobes, "which is probably due to old trauma." Furthermore, a November 2011 private treatment record notes an MRI of the brain revealed advanced cortical volume loss and diffuse/multifocal areas of cystic encephalomalacia, "[f]indings most likely relate to a combination of previous traumatic brain injury, advanced small vessel ischemic changes and prior infarcts." The Veteran was afforded a VA examination in June 2009, in which he was diagnosed with left stroke with right sided hemiparesis and the examiner opined that his stroke was less likely as not associated with the in-service injury. The examiner explained that an MRI "during the time of his stroke did show some encephalomalacia, felt to be due to trauma previously. However, that is old in nature. The veteran suffered an acute left paramedian pontine infarction and left basilar ganglia stroke, and these are not associated with his previous skull fracture, as this is a separate acute injury with over 40 years from the time of his initial fracture." The Veteran was afforded a VA examination in August 2013, in which he reported intermittent right sided headaches since his in-service head injury and the examiner found the Veteran had post traumatic headaches, onset 1964. Additionally, the examiner noted the Veteran did not have/ever had a TBI, noting his stroke was more likely the cause of his cognitive problems, but then noted the Veteran had a TBI with residual headaches. An October 2013 VA medical opinion was obtained, in which the examiner noted a November 23, 1964, service treatment record stated the Veteran's diagnosis of right frontal bone fracture required no major assignment, geographical or climatic area limitations and was temporary. Also, November 24, 1964, separation examination revealed no residuals from the head injury. The examiner also noted that a November 2011 MRI attributed the stroke to advanced small vessel changes in the brain and "[t]he most common cause of small vessel changes in the brain is lipohyalinosis. Lipohyalinosis is most often related to hypertension, but aging may play a role. Veteran is currently 74 years old and is prescribed medication for hypertension. A nondepressed right frontal bone fracture is not a well documented cause of stroke in evidence based medicine." Therefore, the examiner concluded that there was no persuasive evidence that the Veteran had any residuals of a head injury and the Veteran's current symptoms were less likely as not incurred in or caused by the head injury shown in service. Also, the examiner found the Veteran's current right hemiparesis and cognitive impairments were deemed to be residuals of a stroke, but the Veteran's history of a stroke was less likely as not due to or the result of his head trauma in service. First, as the October 2013 VA examiner did not explain the Veteran's reported headaches and the August 2013 VA examiner's finding of a TBI with residual headaches, the Board finds a VA examination is necessary to determine the nature and etiology of the Veteran's alleged TBI or TBI residuals. Second, as the Veteran is claiming his residual right upper extremity hemiparesis status post stroke is secondary to a TBI, the Board finds the issue inextricably intertwined with the herein remand for a TBI. Moreover, although the VA examiner noted that the 2011 MRI attributed the stroke to advanced small vessel changes in the brain, review of the MRI reveals his stroke was attributed to "a combination of previous traumatic brain injury, advanced small vessel ischemic changes and prior infarcts." Therefore, if the RO finds the TBI or TBI residuals are related to service, then a VA medical opinion is necessary to determine whether the Veteran's residual right upper extremity hemiparesis status post stroke are related to the TBI or TBI residuals. Additionally, the Veteran claims service connection for bilateral hearing loss and the Board notes the RO has conceded in-service noise exposure. The Veteran was afforded a VA examination in August 2013, in which he was diagnosed with bilateral hearing loss for VA purposes. The VA examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of an event in the military, explaining that entrance examination did not contain "frequency specific date(whispered voise [sic] only)," and separation examination showed normal hearing. However, as the Court held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service, Hensley v. Brown, 5 Vet. App. 155, 157 (1993), and the Veteran currently has bilateral hearing loss for VA purposes, the Board finds the August 2013 VA examination to be inadequate. As such, a VA medical opinion is necessary to determine the etiology of his current bilateral hearing loss. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA TBI examination to determine the nature and etiology of his claimed condition. All indicated tests and studies should be accomplished and the findings then reported in detail. The complete claims file, including a copy of this remand, should be provided to the examiner. The examiner should opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran experienced a TBI in service and if so, what residual disabilities have resulted. In making the determination, the examiner should consider the Veteran's report of headaches since service and the August 2013 VA examiner's finding of a TBI with residual headaches. 2. If the above development is positive, then obtain an opinion from a VA medical professional regarding the etiology of the Veteran's residual right upper extremity hemiparesis, status post stroke. The medical professional should be provided with the Veteran's complete claims file, and a complete rationale should be provided for any opinion expressed. Examination of the Veteran is not required, unless so determined by the medical professional. The examiner is requested to address the following question: Whether it is at least as likely as not (50 percent or better probability) that the Veteran's claimed right upper extremity hemiparesis status post stroke has been caused OR aggravated (worsened) by his TBI or TBI residuals? The examiner is instructed to consider the December 2007 private treatment record that notes a CT of the head revealed "moderate senescent volume loss and white matter changes with bifrontal encephalomalacic noted likely related to old trauma," the December 2007 MRI that revealed acute left paramedian pontine infarct and encephalomalacia in the inferior frontal lobes, "which is probably due to old trauma," and the November 2011 private treatment record noting an MRI of the brain revealed advanced cortical volume loss and diffuse/multifocal areas of cystic encephalomalacia, "[f]indings most likely relate to a combination of previous traumatic brain injury, advanced small vessel ischemic changes and prior infarcts." 3. Also, obtain a VA medical opinion with regard to the bilateral hearing loss claim. The claims folder and a copy of this REMAND should be reviewed by the examiner. The examiner is requested to address the following question: Whether it is at least as likely as not (50 percent or better probability) that the Veteran's currently diagnosed bilateral hearing loss is related to conceded in-service noise exposure. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain whether additional information is needed or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above and any other development deemed necessary, readjudicate the remanded issues. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs