Citation Nr: 18144433 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-06 407 DATE: October 24, 2018 ORDER Application to reopen a claim of service connection for a chronic disability manifested by right ear pain, other than the already service-connected hearing loss and tinnitus, is granted. REMANDED Entitlement to service connection for a chronic disability manifested by right ear pain other than the already service-connected hearing loss and tinnitus is remanded. Entitlement to Veterans' Administration (VA) compensation benefits under 38 U.S.C. § 1151 for residual on an HIV infection caused by treatment at VA is remanded. FINDINGS OF FACT 1. A May 2003 rating decision denied the Veteran’s claim of service connection for right ear pain; the claimant did perfect his appeal to this decision; he did not thereafter submit new and material evidence within the one-year appeal period; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period for this decision. 2. Evidence received since the May 2003 rating decision rating decision is new, is related to an unestablished fact necessary to substantiate the claim of service connection for a chronic disability manifested by right ear pain, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for a chronic disability manifested by right ear pain is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1970 to July 1973. In December 2015, the Board remanded the above claims for additional development. While the Board also remanded claim of service connection for right knee and ankle disabilities, these issues are no longer in appellate status because the regional office (RO) granted the claims in a December 2017 rating decision. Application to reopen a claim of service connection for a chronic disability manifested by right ear pain. The Veteran claims, in substance, that he is entitled to service connection for a chronic disability manifested by right ear pain because it was caused by the time he spent working in a rock quarry as a combat engineer while on active duty. As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. 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). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that a May 2003 rating decision denied the Veteran’s claim of service connection for right and left ear pain. The decisions denied his claim because, in substance, the record did not show that the Veteran had a diagnosed disability other than bilateral hearing loss and tinnitus. The Veteran did not perfect his appeal to the May 2003 rating decision because he did not file a substantive appeal. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of this rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period. See Turner, super. Accordingly, the Board finds that the May 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final May 2003 rating decision, the Veteran, his representative, and/or VA obtained and associated with the claims file additional medical records and written statements in support of the claim. In this regard, the medical records added to the record since the time of the final May 2003 rating decision include for the first time a diagnosis of a chronic disability manifested by right ear pain other than the already service-connected hearing loss and tinnitus -otitis and myringosclerosis. See, e.g., VA treatment record dated in July 2005 and VA examination dated in November 2014. Therefore, because a current disability is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that this medical evidence constitutes new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a chronic disability manifested by right ear pain is remanded. The record shows that in December 2014 the RO obtain an opinion as to the origins of the Veteran’s ear disability. However, the Board does not find the opinion provided that examiner was adequate because it is confusing and inconsistent. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board also does not find the opinion adequate because the examiner did not provide a clear opinion as to whether the Veteran’s already service-connected bilateral hearing loss and tinnitus caused or aggravated the disability causing the appellant’s right ear pain. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that a remand to obtain an adequate medical opinion is required. See 38 U.S.C. § 5103A(d). Given the Veteran’s ongoing treatment, while the appeal is in remand status any outstanding medical records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). 2. Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residual on an HIV infection caused by treatment at VA is remanded. The record shows that in January 2013 the RO obtain an opinion as to the 1151 claim. However, the Board does not find the opinion provided that examiner adequate because the examiner did not clearly provide an opinion as to whether any of the treatment the Veteran received at VA before being diagnosed with HIV in 2006 was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in the treatment provided (or not provided) or (2) an event not reasonably foreseeable in the course of such treatment. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361; VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). Therefore, the Board finds that a remand to obtain an adequate medical opinion is required. See 38 U.S.C. § 5103A(d); Barr, supra. In this regard, the Board finds that while the appeal is in remand status efforts should be made to make certain that all of the Veteran’s pre-2006 VA treatment records have been associated with the claims file because it is not clear for the record that they are in the record. See 38 U.S.C. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records including the Veteran’s pre-April 2003 and post-May 2003 treatment records from the Indiana VA Medical Center; pre-July 2005 and post-June 2017 treatment records from the Milwaukee VA Medical Center; and pre-November 2006 and post-December 2017 treatment records from the Bay Pines VA Medical Center. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. After obtaining all needed authorizations from the Veteran and/or his representative, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the diagnoses and etiology of all chronic disabilities manifested by right ear pain other than the already service-connected hearing loss and tinnitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide a diagnosis for each disability manifested by right ear pain other than the already service-connected hearing loss and tinnitus (if any). b. For each chronic disability manifested by right ear pain, other than the already service-connected hearing loss and tinnitus but including otitis and myringosclerosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran’s military service. c. For each chronic disability manifested by right ear pain, other than the already service-connected hearing loss and tinnitus but including otitis and myringosclerosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran’s service-connected bilateral hearing loss and/or tinnitus. d. For each chronic disability manifested by right ear pain, other than the already service-connected hearing loss and tinnitus but including otitis and myringosclerosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was permanently aggravated beyond the normal course of the condition by the Veteran’s service-connected bilateral hearing loss and/or tinnitus. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology and his in-service occupational specialty as a combat engineer. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Thereafter, obtain a medical opinion from a suitably-qualified medical professional to address the claim that the Veteran’s HIV infection caused by treatment at VA. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s HIV infection was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in the treatment provided (or not provided). b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s HIV infection was an event not reasonably foreseeable in the course of such treatment. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable. The examiner must include in the medical report the rationale for any opinion expressed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel