Citation Nr: 18145224 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-44 315 DATE: October 26, 2018 ORDER New and material evidence having been received, the previously denied claim for entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a disorder manifested by dizziness is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss is remanded. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for eye injury, faint corneal scar, right eye is remanded. FINDINGS OF FACT 1. In an August 2011 rating decision, the RO denied the Veteran’s service connection claim for tinnitus. Although the Veteran filed a notice of disagreement in August 2012, and a statement of the case was issued in August 2013, he did not file a timely substantive appeal, and no new and material evidence was received prior to the expiration of the appeal period. 2. The evidence received since the August 2011 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for tinnitus. 3. The Veteran’s tinnitus was incurred in active service. CONCLUSIONS OF LAW 1. The August 2011 rating decision that denied the Veteran’s claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1101, 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1981 to August 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in August 2014 and February 2015. The Board notes that the August 2014 rating decision denied entitlement to service connection for a sleep disorder, and the February 2015 rating decision denied entitlement to service connection for sleep apnea. In the interest of judicial efficiency, the Board has recharacterized the issue as entitlement to service connection for a sleep disorder, to include sleep apnea. The record shows that the Veteran was previously represented by attorney J. Michael Woods. However, this attorney later withdrew as the representative. See April 2016 Statement. The Veteran has not yet appointed a new representative. 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for tinnitus. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. See id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In addition, where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The Veteran's service connection claim for tinnitus was initially denied in an August 2011 rating decision. The Veteran was notified of this decision and his appellate rights in an August 2011 letter. After the Veteran submitted a timely notice of disagreement in August 2012, he was furnished with a statement of the case in August 2013. However, the Veteran did not submit a timely substantive appeal in response to the statement of the case, and no new and material evidence was received prior to the expiration of the appeal period. As a result, the August 2011 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. The evidence of record at the time of the August 2013 statement of the case includes the Veteran’s statements, service treatment records (STRs), DD Form 214, and VA examinations dated in September 1985 and July 2011. The Veteran’s STRs are silent for any complaints, treatment, or diagnoses related to tinnitus. Approximately one month after the Veteran’s August 1985 separation from active service, a VA general medical examination was conducted in September 1985. At that time, the examiner noted that the Veteran’s ears were within normal limits. However, the examiner did not mark a box to indicate whether or not hearing loss was noted. In addition, the examination rubric did not include a category specific to tinnitus. The Veteran’s DD 214 reflects that his military occupational specialty (MOS) was quartermaster and chemical equipment repairer, 63J10. In August 2010, the Veteran stated that during his active service, he was exposed to loud noises from engines every day while working in the motor pool. The Veteran reported that he began to experience buzzing and ringing in his ears during service, and these symptoms had been present since that time. During the subsequent July 2011 VA examination related to the Veteran’s claim, the examiner noted that the Veteran denied having any current complaint of tinnitus. The examiner then provided a negative nexus opinion for the disorder based on the Veteran’s denial of current symptoms. The evidence received since the August 2013 statement of the case includes the Veteran’s October 2014 notice of disagreement and November 2015 VA Form 9. The Board finds that these statements indicate that the Veteran is now asserting that he does currently have tinnitus. The Veteran is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, the Veteran is competent to identify a disorder such as tinnitus for diagnostic purposes. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 310; Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). This new evidence relates to the establishment of a current diagnosis for tinnitus, and it is presumed to be credible. Justus, 3 Vet. App. at 513. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied service connection claim for tinnitus. As the Board has reopened the Veteran's service connection claim for tinnitus, the Board has considered whether it is appropriate to address the merits of the claim without remand to the RO for action. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question not addressed by the RO, "it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby"). In light of the favorable outcome below, it is clear that the Veteran is not prejudiced by the Board's adjudication of the issue on a de novo basis. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As previously noted, the Veteran has reported receiving noise exposure during service when he worked in the motor pool. The Department of Defense's Noise Exposure Listing shows that his MOS of quartermaster and chemical equipment repairer, 63J10, now with the code of 91J, has a moderate probability of noise exposure. The Board also notes that the job duties of this MOS include servicing internal combustion engine/ignition/fuel/cooling/electrical systems. See Careers & Jobs: Quartermaster and Chemical Equipment Repairer (91J), U.S. Army (Oct. 19, 2018), https://www.goarmy.com/careers-and-jobs/browse-career-and-job-categories/mechanics/quartermaster-and-chemical-equipment-repairer.html. Given the circumstances of the Veteran's service, the Board accepts the Veteran's assertion of in-service noise exposure as credible and consistent with his service. 38 U.S.C. § 1154(a). The Veteran’s reported medical history also indicates that he has experienced continuous symptoms of tinnitus since his active service. Although the Veteran apparently denied having current complaints of tinnitus during the July 2011 VA examination, the Board finds that his subsequent statements asserting that he should be awarded entitlement to service connection for tinnitus serve to clarify that he does currently have tinnitus. Resolving all doubt in favor of the Veteran, the Board finds that his reports of persistent tinnitus symptoms since service are credible. Based on the foregoing, the Board finds that the Veteran meets the requirements for a presumption of service connection. Consequently, service connection for tinnitus is granted. 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for a disorder manifested by dizziness; entitlement to service connection for a psychiatric disorder, to include PTSD; entitlement to service connection for a sleep disorder, to include sleep apnea; whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss; and whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for eye injury, faint corneal scar, right eye, are remanded. The record reflects that there are outstanding VA treatment records. In the course of the Veteran’s current appeal, he informed the RO that he had received treatment from the Durham VA Medical Center for PTSD and an eye injury since March 2012. See December 2014 VA Form 21-526Ez. The record also includes a November 2012 VA Report of Hospitalization for suicidal ideation from the Durham VA Medical Center. However, the most recent VA treatment record is dated in August 2004, and from the VA New Jersey Health Care System. The record does not indicate that the RO has attempted to obtain the VA treatment records identified by the Veteran. Any VA treatment records are within VA's constructive possession, and VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). A remand is therefore required to allow the AOJ to obtain the identified records. The August 2014 rating decision denied entitlement to service connection for a mental health disorder. Although the Veteran later indicated that his claim includes PTSD in a December 2014 VA Form 21-526Ez, Application for Disability Compensation and Related Compensation Benefits, he has not yet completed a VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). Upon remand, the AOJ should request that he complete and return this form. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his dizziness, psychiatric disorder, sleep disorder and/or sleep apnea, bilateral hearing loss, and eye injury. The AOJ should also secure any outstanding VA medical records, to include records from the Durham VA Medical Center dated since March 2012. 2. Send the Veteran a VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). Request that the Veteran complete and return this form. Gayle Strommen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel