Citation Nr: 18143349 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-37 294 DATE: October 18, 2018 ORDER The request to reopen the claim for entitlement to service connection for a back disability, is granted. The request to reopen the claim for entitlement to service connection for headaches is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in March 2011, the Veteran was denied service connection for a back disability. 2. The evidence associated with the claims file subsequent to the March 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 3. In an unappealed rating decision issued in March 2011, the Veteran was denied service connection for headaches. 4. The evidence associated with the claims file subsequent to the March 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for headaches, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 5. The Veteran’s tinnitus is etiologically related to his active service. 6. The evidence of record supports that the Veteran’s migraine headaches have been continuous since service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for headaches. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). 4. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.303(a), 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from February 2003 to March 2007. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a). An exception to this rule 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, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. New and material evidence has been received to reopen a claim for entitlement to service connection for a back disability. The Veteran has been denied service connection for a back disability in rating decisions issued in March 2008, June 2009, March 2011, and September 2013. The Veteran did not timely appeal the March 2008, June 2009, or March 2011 rating decisions. As such, each of these decisions became final, and the March 2011 rating decision is the last final decision of record. In the March 2011 rating decision, the RO denied the claim for service connection for a back disability because although there is a record of treatment in service for lumbago and a back contusion, no permanent residuals are shown in the service treatment records (STRs). The RO also noted that there was no indication of a current diagnosis related to the in-service lumbago or contusion. In August 2012, the Veteran filed another claim for service connection for a back disability. The August 2012 claim was denied in the September 2013 rating decision, which the Veteran timely appealed. Having previously been denied service connection for a back disability in a prior final decision, the claim is not considered new. Instead, the claim is construed as a claim to reopen. As such, new and material evidence is necessary for the Board to adjudicate the merits of the claim for service connection. Since the prior final decision, the March 2011 rating decision, the Veteran has submitted an April 2016 lumbar MRI indicating a diagnosis for “concentric L5-S1 disc bulge probably significant in view of the constitutionally small neural foramina at this level.” The MRI constitutes new evidence as it was not of record at the time of the prior final denial. Nor is the evidence cumulative or redundant of any evidence already of record. As this new evidence establishes a current diagnosis for a back disability, it speaks to a previously unestablished fact. As such, the new evidence has a reasonable possibility of substantiating the Veteran’s claim and is therefore also material. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for a back disability is reopened. 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen a claim for entitlement to service connection for headaches. The Veteran was also denied service connection for headaches in the rating decisions issued in March 2008, June 2009, and March 2011. As discussed, these rating decisions were not appealed within a year of the decision date and, as such, became final. In the March 2011 rating decision, the last final decision, the RO denied the claim for service connection for headaches because the evidence fails to show a diagnosis for chronic headaches subject to service connection. In August 2012, the Veteran filed a claim for service connection for headaches, claimed also as migraines. The August 2012 claim for headaches/migraines was also denied in the September 2013 rating decision, which the Veteran timely appealed. Although the Veteran included migraines in the August 2012 claim form, as both migraines and headaches entail symptomatology of head pain, the claim for headaches/migraines, although recharacterized in terms of diagnosis, is for the same symptoms. As such, having previously been denied service connection for headaches in a prior final decision, the claim is not new. Thus, new and material evidence is necessary for the Board to adjudicate the merits of the claim for service connection. Since the prior final decision, the March 2011 rating decision, a March 2015 record from Columbia VA Medical Center (VAMC) indicates a current diagnosis for migraine headaches. This evidence is considered new as it was not of record at the time of the prior final denial. Nor is the evidence cumulative or redundant of any evidence already of record. As the evidence establishes a current diagnosis for migraine headaches, it speaks to a previously unestablished fact. As such, the new evidence has a reasonable possibility of substantiating the Veteran’s claim and is therefore also material. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. at 110. Accordingly, the claim of entitlement to service connection for headaches is reopened. 38 C.F.R. § 3.156(a). Service Connection 1. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus as a result of his in-service noise exposure. The September 2013 hearing VA examination indicates a diagnosis for recurrent tinnitus. As such, a current diagnosis is established. As to an in-service incurrence, the Veteran’s DD-214 lists his military occupation specialties (MOS) as medical administration journeyman and postal specialist. The Board acknowledges that neither MOS has a high likelihood of noise exposure. However, the Veteran testified at the February 2017 hearing that as a postal specialist in Germany, he had to deliver mail onto the C141 aircraft three times a day for six months while the engines of the aircraft were running. He testified that he did not have any hearing protection. He also testified that he did not experience ringing in his ears prior to service and that when he complained of the ringing in his ears to other guys in service, he was told that it was normal. The Board has no reason to doubt the credibility of the Veteran’s statements. Nor is there any evidence of record to suggest that the Veteran did not deliver mail around aircraft. As such, the Board finds the statements probative and concedes in-service noise exposure. The remaining issue is a nexus. The September 2013 VA examiner provided a negative etiological opinion as to whether the Veteran’s tinnitus is related to his service. The examiner reasoned that there is no evidence that hearing loss or a significant threshold shift occurred during service. The examiner stated that as such, there is no basis on which to conclude that the Veteran’s tinnitus was caused by noise exposure. However, as the Board has conceded noise exposure in this decision, the opinion, based on lack of noise exposure, is not adequate. Yet, remand is not necessary as the Board finds the Veteran competent to indicate a nexus in this instance. At the February 2017 hearing, the Veteran stated that the ringing in his ears began during and has been consistent since service. In weighing the Veteran’s statements, the Board notes that he is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted, the Board also has no reason to doubt the credibility of the Veteran’s statements and as such finds them credible. The Board also finds the Veteran’s lay statements that he experienced ringing in his ears during and since service sufficient to indicate a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Having experienced ringing in the ears following noise exposure and thereby linking the ringing in the ears to noise exposure does not require medical knowledge or training. Accordingly, a nexus is established, and the appeal for service connection for tinnitus is granted. 2. Entitlement to service connection for headaches (now claimed as migraines) Having reopened the claim for service connection for headaches, the Board also finds that service connection for migraine headaches is warranted. As noted, the record reflects a current diagnosis for migraine headaches. Certain chronic disabilities, including some types of headaches (as organic disease of the nervous system), are subject to presumptive service connection under 38 C.F.R. § 3.309(a); see also VBA Adj. Manual M21-1, III.iv.4.G.1.d (classifying migraine headaches as an organic disease of the nervous system under 38 C.F.R. § 3.309 (a)). The Board notes that service connection for migraine headaches is not warranted on a presumptive basis as the condition was not diagnosed during service or within a year of discharge from service. The Veteran was diagnosed with tension headaches in service, not migraines. However, when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements of service connection. See Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). Here, the Board finds that service connection for migraine headaches is warranted based on the continuity of the Veteran’s symptoms since service. A November 2004 STR reflects complaints from the Veteran of headaches causing his eyeball to hurt and pain so intense that he has to stop doing what he is doing. At the February 2017 hearing, the Veteran complained of similar symptomatology currently. He also asserted that he has had these symptoms since service when he fell from a ladder and hit his head. While the in-service diagnosis was for tension headaches, as the symptoms are similar to those the Veteran currently experiences as a result of his migraine headaches, the Board finds the evidence equally balanced. Resolving any reasonable doubt in favor of the Veteran, the Board finds the record sufficient to indicate continuity of the Veteran’s headache symptoms since service. As such, the second and third elements of service connection have been met, and the appeal for service connection for headaches is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. Having reopened the claim for service connection for a back disability, the Board finds that additional development is necessary. As discussed, the record reflects a current diagnosis for a back condition. As to an in-service incurrence, the Veteran has indicated that his current back condition is related to a fall from a ladder during service. Additionally, he testified at the February 2017 hearing that he hurt his back again in service while lifting computers. The Board notes that a February 2005 STR also notates that the Veteran fell on his back while playing basketball. The assessment was for a back contusion and lumbago. However, there is no medical opinion of record linking the Veteran’s current back disability to his in-service back injuries. The Veteran was afforded a general VA examination in February 2008 in which the examiner assessed the Veteran’s low back pain and acknowledged his reports of in-service injuries to the back. However, at that time, the examiner did not provide a current diagnosis or a medical opinion. As the record now reflects a current diagnosis for a back disability, remand is necessary for an etiological opinion. 2. Entitlement to service connection for a left knee disability is remanded. The Board also finds that additional development is necessary pertaining to the claim for service connection for a left knee disability. The Veteran asserts that he fell in a pothole and twisted his knee during service. See February 2017 Hearing Transcript. As to a current diagnosis, the Board notes that the record does not reflect a current diagnosis for a left knee disability. However, the record suggests persistent or recurrent symptoms of a left knee disability. The Veteran testified at the February 2017 hearing that he cannot walk or stand on his knee for prolonged periods. He also stated that he has a burning sensation that radiates from his knee to his ankle that has persisted since he twisted his knee in service. Additionally, a March 2015 primary care note from Columbia VAMC recommends radiologic studies of the Veteran’s knee, which indicates to the Board that the Veteran’s symptoms are at least suggestive of a diagnosis. As such, remand is necessary to determine if the Veteran has a current left knee disability and if so, whether it is related to his service. The Veteran also has not undergone a VA examination for the left knee. However, the Board finds that a VA examination is now warranted per McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The record reflects persistent or recurrent symptoms of a left knee condition, and the Veteran has indicated an in-service event and association to his active service. Yet, lacking a nexus opinion, the record is insufficient to decide the claim. As such, the Board determines that VA’s duty to assist has been triggered, and a VA examination and opinion are warranted as to the Veteran’s claimed left knee disability. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the nature and etiology of his current back disability. The claims file and a copy of this remand must be made available to each examiner, and the examiner should indicate that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. Regarding the Veteran’s current back disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current back disability was incurred in or is otherwise related to his active service. Importantly, the examiner must account for all the Veteran’s in-service reports of back injuries as well as the in-service diagnoses for back contusion and lumbago. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of any current left knee disability. i) First, the examiner is asked to indicate whether the Veteran has a current diagnosis for a left knee disability and if so, identify that disability. ii) For any currently diagnosed left knee disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current left knee disability was incurred in or is otherwise related to his active service. Importantly, the examiner must account for the Veteran’s statements that he twisted his left knee in service when he fell into a pothole and that he has had left knee pain since. 3. After completing the above actions, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel