Citation Nr: 18144658 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-18 398 DATE: October 25, 2018 ORDER As new and material evidence has been received, the Veteran’s claim for entitlement to service connection for a heart disability is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for burry vision to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for strokes and residuals thereof to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for headaches to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for episodes of dizziness and fainting to include as secondary to service-connected disabilities is remanded. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. Entitlement to a disability rating exceeding 10 percent prior to June 26, 2013 for a seizure disorder is remanded. Entitlement to a disability rating exceeding 20 percent beginning June 26, 2013 for a seizure disorder is remanded. FINDINGS OF FACT 1. A February 1974 rating decision denied the Veteran entitlement to service connection for a heart disability to include a functional systolic heart murmur. The Veteran was notified of that decision but did not initiate an appeal of the finding regarding the heart condition, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since February 1974, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a heart disability. This evidence includes the Veteran’s July 2018 hearing testimony about his worsening cardiovascular health in the context of worsening service-connected seizures. 3. The evidence shows that the Veteran’s tinnitus is at least as likely as not related to his military service to include noise exposure and as secondary to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The February 1974 rating decision, which denied the Veteran’s claims of entitlement to service connection for a heart disability to include a functional systolic heart murmur, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the February 1974 rating decision is new and material, and the claim of entitlement to service connection for a heart disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to August 1973. This appeal comes to the Board of Veterans’ Appeals (Board) from August 2013, December 2014, and December 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a July 2018 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the evidentiary record. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is competent to discuss observed physical symptoms, such as a whooshing or roaring noise in the ears. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (“ringing in the ears is capable of lay observation”). Tinnitus, moreover, is a disorder uniquely ascertainable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, tinnitus is defined as a noise in the ears, a finding that can only be determined by the Veteran’s reporting of the condition. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). A review of the record shows that while VA examiners have indicated that the Veteran’s hearing loss is at least as likely as not related to the Veteran’s noise exposure during his military service, they have not provided a clear opinion as to whether his claimed tinnitus is secondary to such hearing loss or is otherwise related to the Veteran’s service. They have only indicated that the tinnitus is not constant or recurrent but occurs infrequently per the Veteran’s prior statements. See October 2015 VA Hearing Loss and Tinnitus examination; December 2014 VA Hearing Loss and Tinnitus examination. However, at his hearing, the Veteran asserted that he has experienced tinnitus associated with his hearing loss since his exposure to noise in service, and a review of the VA examinations and treatment records indicates the Veteran has reported an increase in the severity of his tinnitus coinciding with his reports of worsening hearing loss. See Veteran’s July 2018 hearing testimony; October 2015 VA Hearing Loss and Tinnitus examination; December 2014 VA Hearing Loss and Tinnitus examination. Therefore, the Board finds the VA examinations are inadequate for assessing the current severity and cause of the Veteran’s tinnitus. Ultimately, the Board affords great probative value to the Veteran’s reports of hearing loss and associated tinnitus following noise-exposure during service. See Veteran’s July 2018 hearing testimony. The Veteran’s service treatment records support the Veteran’s contention that he was exposed to loud noises including gunfire during service. See, e.g., Veteran’s Certificate of Release or Discharge (noting the Veteran served as a Rifleman and earned a Rifle Sharpshooter Badge). Affording the Veteran the benefit of the doubt, entitlement to service connection for tinnitus associated with his service-connected hearing loss is granted. REASONS FOR REMAND At the July 2018 hearing, the Veteran testified that his service-connected bilateral hearing loss disability and seizure disorder have worsened since his last VA examinations. The Veteran also indicated that he has a worsening heart disability and has been told that he will need to have an electric valve implanted. The Veteran indicated at the hearing that he believes his claimed symptoms including headaches, dizziness, passing out, blurry vision, and strokes are caused by or aggravated by his service-connected seizure disorder. The Veteran testified he was treated for seizures and strokes in the weeks and months prior to the hearing, and the Board notes that the pertinent treatment records have not been associated with the evidence of record. On remand, the AOJ should attempt to locate all outstanding, relevant treatment records and afford the Veteran current VA examinations of his service-connected disabilities and other claimed conditions to identify all manifestations of disabilities related to his service. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding records with the Veteran’s claims file, the AOJ should afford the Veteran examinations with appropriate examiners to assess the current severity of his service-connected seizure disorder and bilateral hearing loss disability. The AOJ should ensure that the examiners provide adequate evaluations for rating purposes by addressing pertinent rating criteria for seizures and hearing loss on appropriate evaluation forms. The AOJ should provide the examiners with complete copies of the claims file to include this remand order. If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. The AOJ should also afford the Veteran examinations with appropriate examiners to assess whether the following conditions are related to his military service to include as secondary to his service-connected disabilities: (1) a heart disability, (2) blurry vision, (3) strokes and residuals thereof, (4) headaches, (5) dizziness, and (6) associated fainting episodes. The AOJ should ensure that the examiner(s) follows these directives: (a.) To the extent possible, the VA examiner(s) should identify all current disabilities associated with the Veteran’s cardiovascular and nervous systems as well as any disabilities with manifestations including headaches, blurry vision, and episodes of dizziness and associated fainting. (b.) For each current disability identified, the examiner(s) should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include reports of dizziness, headaches, blurry vision, passing out, and heart abnormalities to include a heart murmur. The examiner(s) should explain why or why not. (c.) For each current disability identified, the examiner(s) should opine whether the disability was at least as likely as not permanently worsened beyond normal progression (aggravated) by the Veteran’s service-connected seizure disorder or a cardiovascular disability. (d.) The examiner(s) should opine whether it as at least as likely as not that the Veteran’s service-connected seizure disorder or a cardiovascular disability is manifested by blurry vision, headaches, dizziness, or passing out in addition to other characteristic symptoms. (e.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel