Citation Nr: 18140040 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-05 753 DATE: October 2, 2018 ORDER The appeal seeking to reopen a claim of service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. The appeal seeking to reopen a claim for service connection for residuals of a head injury is granted. REMANDED Entitlement to service connection for residuals of a head injury is remanded. The appeal seeking to reopen a claim for service connection for hearing loss is remanded. FINDINGS OF FACT 1. An October 2008 rating decision denied service connection for residuals of a head injury and for tinnitus. The Veteran did not appeal the decision and new and material evidence was not submitted within a year after the decision. Therefore, the decision is final. 2. Evidence received since the October 2008 rating decision includes a grant of service connection for a scar on the Veteran’s forehead; this relates to an unestablished fact necessary to substantiate the underlying claim of service connection for residuals of a head injury. 3. Evidence received since the October 2008 rating decision includes a grant of service connection for a scar on the Veteran’s forehead, which the Veteran has stated was the beginning of his tinnitus; this relates to an unestablished fact necessary to substantiate the underlying claim of service connection for residuals of tinnitus. 4. The Veteran has been diagnosed with tinnitus and has provided competent and credible evidence (including sworn testimony) reflecting that his tinnitus was incurred in service and has persisted since that time. CONCLUSIONS OF LAW 1. The October 2008 rating decision became final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The evidence received since the July 2010 rating decision, which denied service connection for residuals of a head injury, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The evidence received since the July 2010 rating decision, which denied service connection for tinnitus, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from January 1974 to June 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the undersigned at a travel Board hearing in May 2018. A transcript of the hearing is of record. Regarding the appeals to reopen the claims of service connection for tinnitus and residuals of a head injury, the Board notes that the Veteran did not submit a timely substantive appeal because it exceeds the sixty days allotted to perfect an appeal to the Board. See February 2015 Veteran’s Appeal to the Board (VA Form 9); see also 38 U.S.C. § 7105(d) (2012); 38 C.F.R. §§ 20.202, 20.302. However, this is not a jurisdictional bar and the Board waives timeliness as to these issues. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The appeals seeking to reopen the claims of service connection for tinnitus and for residuals of a head injury are granted. Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. §§ 7104. “New” evidence means existing 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 last 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). Evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO previously adjudicated the Veteran’s claims for service connection for tinnitus and residuals of a head injury in a rating decision dated in September 2008. In this decision, the RO denied the Veteran’s claims because, in part, it concluded that the Veteran had only a “small laceration on the forehead that was sutured and healed” and because the Veteran’s post-service employment exposed him to noise and the onset of tinnitus was actually in 1994. See September 2008 Rating Decision. The Veteran did not appeal that decision and the record does not reflect that there was new evidence submitted within one year of the rating decision. Therefore, the September 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. However, since that time, service connection for the Veteran’s scar on his forehead has been granted on the grounds that there was clear and unmistakable error in the prior adjudication. See November 2013 Rating Decision. This evidence is new because it was not of record during the prior final denial. It is material because it indicates that the Veteran’s prior VA examiner’s opinion may have been based on a false factual basis. Compare July 2010 VA Examination by P.S., N.P. (noting a “superficial scalp wound”) with November 2013 Rating Decision (service connecting a nearly three inch scar on the forehead). This means that VA’s duty to assist was triggered and a new medical opinion was necessary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although this evidence most clearly applies to the Veteran’s appeal to reopen the claim of service connection for residuals of a head injury, it also applies to the Veteran’s appeal to reopen the claim of service connection for tinnitus because the Veteran reports that this was the onset of his ringing in his ears. See February 2015 Veteran’s Appeal to the Board (VA Form 9); May 2018 Hearing Testimony. Considering this new and material evidence, reopening is warranted. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Service connection for tinnitus is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The medical evidence of record establishes that the Veteran has currently diagnosed tinnitus, see, e.g., April 2013 Primary Care Treatment Note by S.R., Physician, and his sworn testimony establishes that he has had ringing in the ears since service, see May 2018 Hearing Transcript. Therefore, the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding that service connection is warranted for tinnitus. Because this represents a full grant of the benefit sought, it is not prejudicial to adjudicate the claim at this time. REASONS FOR REMAND The appeal seeking to reopen a claim for service connection for hearing loss is remanded. The Board construes the Veteran’s September 2013 notice of disagreement (NOD) to also include an appeal of the denial of reopening his claim for service connection for hearing loss. See September 2013 NOD. This is primarily because the Veteran appealed “residual head injury,” which he has stated was the onset of his hearing loss and even included in his NOD that he has “absolutely no high pitch hearing left in either ear, which I am told by a VA doctor that was caused from this injury to my head.” Id. In light of this, the Board finds that the Veteran reasonably expressed disagreement with the denial of reopening his claim for service connection for hearing loss and a desire to contest the results of that denial. See 38 C.F.R. § 20.201 (2013). However, a statement of the case (SOC) has not been issued in this matter. Therefore, the Board assumes jurisdiction for the limited purpose of remanding for corrective action pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). Service connection for residuals of a head injury is remanded. Entitlement to service connection has not yet been adjudicated on the merits by the RO. A remand is required to allow the RO to adjudicate this claim on the merits. Further, as discussed above, the Veteran’s prior VA examiner’s opinion may have been based on a false factual basis. Compare July 2010 VA Examination by P.S., N.P. (noting a “superficial scalp wound”) with November 2013 Rating Decision (service connecting a nearly three inch scar on his forehead). This means that further development of the evidence is warranted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, the opinion of the examiner is internally inconsistent and further clarification is required; primarily, the examiner indicates at one point his symptoms that the Veteran attributes to residuals of a head injury are more likely than not due to age and hypothyroidism, but then the examiner also says that these symptoms are more likely to be the result of posttraumatic stress. July 2010 VA Examination by P.S., N.P. The matters are REMANDED for the following action: 1. Provide the complete record to an appropriate clinician and obtain an addendum opinion regarding the claim for service connection for a head injury. The examiner MUST indicate that he has reviewed the entire record. Based on the factual evidence of record, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s residual head injury condition(s) by diagnosis(es). Please identify and list all symptoms that the Veteran has and is reasonably attributable to residuals of a head injury. (b.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current residual head injury condition(s) or symptom(s) were incurred in military service, to include as a result of the traumatic accident involving a musket revolver backfiring and exploding, lacerating his frontal scalp. The examiner is advised that he MUST presume that the underlying event occurred and that the Veteran was struck on the head during this event. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. In particular, the Veteran reported a period of posttraumatic amnesia after this accident. IF the examiner believes that the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. The examiner is advised that, BY LAW, the particular facts and circumstances of the Veteran’s case (i.e., his particular medical condition and circumstances) must be addressed. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. [CONTINUED ON THE NEXT PAGE]   2. Send the Veteran and his representative a statement of the case that addresses the appeal to reopen the Veteran’s claim of service connection for hearing loss. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel