Citation Nr: 18144631 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-08 252 DATE: October 25, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. New and material evidence having been received, the claim of entitlement to service connection for sinusitis is reopened. REMANDED Entitlement to service connection for sinusitis and allergic rhinitis is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for transient ischemic attack (TIA) or cerebrovascular accident with memory loss, due to medication taken for hypertension is remanded. FINDINGS OF FACT 1. Resolving any doubt in favor of the Veteran, bilateral hearing loss was incurred in service. 2. Resolving any doubt in favor of the Veteran, tinnitus was incurred in service. 3. Prior to the present appeal, service connection for sinusitis was last denied in an April 2011 rating decision on the basis that new and material evidence had not been submitted to show that sinusitis was a chronic disability caused by or incurred during the Veteran’s active service. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period following the April 2011 decision. 4. Evidence submitted since the April 2011 denial is new, and when credibility is presumed solely for the purpose of reopening the claim, raises a reasonable possibility of substantiating the claim of service connection. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The April 2011 rating decision that denied the Veteran’s claim of entitlement to service connection for sinusitis is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 20.302, 20.1103 (2010). 4. The criteria for reopening the claim of entitlement to service connection sinusitis have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1973 to February 1976 and from August 1977 to December 1981. The Veteran and his spouse appeared before the undersigned Veterans Law Judge in a videoconference hearing in November 2016 to present testimony on the issues on appeal. Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Organic diseases of the nervous system, which includes sensorineural hearing loss and tinnitus, are listed as chronic diseases under 38 C.F.R. § 3.309(a). These chronic diseases are subject to presumptive service connection even though there may be no evidence of such disease during a period of active service, if a Veteran served 90 days or more during a period of war and the disease become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. 38 C.F.R. § 3.307. Service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303 (b). 1. Service connection for bilateral hearing loss and tinnitus The Veteran has been diagnosed with tinnitus and bilateral sensorineural hearing loss that is considered disabling for VA purposes. VA examination, July 2013; see also 38 C.F.R. § 3.385. Although the Veteran did not serve in a combat capacity and his military occupational duties were in administrative and supply specialties, areas in which significant acoustic trauma is generally not expected, VA has conceded exposure to potentially hazardous noise levels during service based upon the Veteran’s credible lay history. VA examination, July 2013 (conceding in-service exposure). The Veteran’s credible reports of in-service noise exposure include being around heavy equipment during his service in a maintenance battalion, and sleeping in tents near noisy generators. See, e.g., Notice of Disagreement, November 2013. However, although the Veteran has a disabling hearing loss now and is found to have had exposure to loud noises during service, the VA examiner in July 2013 found it is less likely than not (less than a 50 percent likelihood) that the Veteran’s current hearing loss was caused by or resulted from his military service. The examiner also opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The VA examiner reached his negative conclusion as to nexus because the electronic hearing testing that was conducted at the time of the Veteran’s enlistment and discharge from military service shows that the Veteran did not have any significant threshold shift in hearing beyond normal variability during service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Here, the VA examination establishes present bilateral hearing loss and tinnitus disability. In-service noise exposure is conceded. The Board finds that there is credible evidence of symptoms of hearing loss and tinnitus in service and continuity of symptoms since service. At the time of the VA examination, the Veteran reported that he had tinnitus since service. At the hearing, the Veteran testified that he had problems with hearing loss in service. The Board finds that there is credible lay evidence from the Veteran that he had hearing loss and tinnitus in service and has had continuity of symptoms since service. As noted above, noise exposure in service has been conceded. When there is an equipoise of evidence, as here, the Veteran prevails on his claims. The Board weighs the balance of the evidence in favor of the Veteran in granting the claims. As such, service connection for hearing loss and tinnitus is granted. New and material evidence having been received, the claim of entitlement to service connection for sinusitis is reopened Where a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Veteran’s claim of entitlement to service connection for sinusitis was last finally denied in April 2011. This determination was based upon a lack of new and material evidence that his sinusitis was a chronic disease incurred in or otherwise attributable to the Veteran’s military service. The Veteran did not appeal the April 2011 rating decision, nor submit additional evidence within the applicable one-year period, and that rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. Thus, new and material evidence is now required to reopen the claim. The prior denials of the Veteran’s claim of entitlement to service connection for sinusitis in November 2006 and in April 2011 dealt in large part with the argument that although the Veteran may have received treatment for sinusitis during service, there was no “permanent residual or chronic disability subject to service connection” shown or demonstrated following service. Rating decision, November 2006. The 2006 rating decision also addressed the absence of evidence showing consistent or persistent symptoms of disability between service and the claim of service connection, essentially arguing that the documented instances of sinusitis are acute and transitory in nature, thus lacking a showing of a causal link or connective relationship between the Veteran’s current episodes of sinusitis and those experienced during service. In November 2012, however, the Veteran submitted a statement from his private treatment provider which stated in its entirety that the Veteran “has chronic sinusitus [sic]. He reports frequent intermittent sinus drainage and pressure.” Private treatment letter, November 2012. A July 2013 VA examination was then conducted and noted that the Veteran had previously been diagnosed with chronic sinusitis and allergic rhinitis. The examiner also responded “Yes” to the question “Does the Veteran have any of the following nose, throat, larynx or pharynx conditions?” denoting sinusitis and rhinitis. However, in the examiner’s medical opinion, she stated that the Veteran did not have evidence of acute or chronic sinusitis on x-ray imaging examination conducted on July 20, 2013, the date of the examination. This evidence is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claim of service connection, at least in so far as raising the duty to assist in obtaining another medical opinion. As new and material evidence has been received, the claim of entitlement to service connection for sinusitis is reopened, and to this extent only, the claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for chronic sinusitis is remanded. The Board cannot make a fully-informed decision on the issue of service connection for sinusitis and allergic rhinitis because no VA examiner has opined whether any such current disability has existed at any point during the present appeal period, i.e. since November 2012. A more complete medical opinion is required. Specifically, the Veteran’s private practitioner states that the Veteran’s condition is frequent and intermittent. The VA examination only iterated that the condition was not present at the time of the x-ray on the day of examination, and does not address the private practitioner’s finding that the condition is intermittent in nature. The claim may still be granted if the disability has been present during the appeals period, even if not present at the specific date of the examination in 2013. Indeed, more recent VA treatment records show recent episodes of sinusitis diagnosed. See, e.g., VA treatment, September 2017. An additional opinion is needed. 2. Entitlement to compensation under 28 U.S.C. § 1151 for TIA or cerebrovascular accident with memory loss due to hypertension medication is remanded. The Board cannot make a fully-informed decision on this issue because the medical opinion currently of record is incomplete. The August 2013 VA examiner was of the clear opinion that the Veteran did not experience a stroke or transient ischemic attack during the hospital admission from September 20-22, 2010. This examiner found that all of the Veteran’s neurolgic symptoms at the time were “readily explained by his dehydration” also referred to as “pre-renal dehydration azotemia” and acute renal failure. VA examination, August 2013. However, the September 2010 hospital discharge summary also stated that the Veteran was taken off of his lisinopril hypertension medication and ibuprofen and that the physician thought “most likely the renal dysfunction was caused by the combination of the lisinopril and ibuprofen.” Private treatment record, September 2010. A subsequent October 2010 private treatment record listed “reaction of lisinopril and motrin” under known allergies. As such, the Board finds an additional medical opinion is necessary to address the causal chain, if any, between the lisinopril prescribed by VA, the Veteran’s dehydration and renal dysfunction, and any resulting neurological defecit. Due to the nature of the claim, requiring a showing of instance of fault on the part of the Department of Vetrans Affairs in furnishing the medical treatment in question, the Board also finds it to be most appropriate to obtain an independent medical opinion if possible. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the nature and etiology of any sinusitis and/or allergic rhinitis present at any point since November 2012. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the episodes of sinus and nasal symptoms documented during service. A new in-person examination of the Veteran is not required unless the examiner determines this, or any other additional testing, to be necessary. 2. Obtain a medical opinion, from an independent non-VA medical practitioner if possible, to determine the nature and etiology of any neurological deficit resulting from the Veteran’s September 2010 hospitalization. The examiner is asked to respond to the following: (a.) Was there additional neurological disability resulting from the event requiring hospitalization on September 20-22, 2010? (b.) If so, was the additional neurological disability caused by any carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault on VA’s part in furnishing lisinopril or hydrochlorothiazide hypertension medications to the Veteran? (Continued on the next page)   (c.) Or, was the Veteran’s response to these medications an event not reasonably foreseeable? (For the purposes of this determination, reasonable foreseeability is based upon consideration of whether the risk of this event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures.) K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald