Citation Nr: 18145851 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-19 381 DATE: October 30, 2018 ORDER Entitlement to an earlier effective date than August 5, 2011, for service connection for tinnitus, to include whether clear and unmistakable error (CUE) was committed in a November 2002 rating decision, is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for scars of the left side of the head is remanded. Whether clear and unmistakable error (CUE) was committed in an November 2002 rating decision that denied service connection for scars is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of left side head trauma, to include headaches, is remanded. Whether clear and unmistakable error (CUE) was committed in an November 2002 rating decision that denied service connection for headaches is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to a rating in excess of 40 percent for bilateral hearing loss is remanded. FINDING OF FACT 1. The Veteran’s initial claim for service connection for tinnitus was received on September 2002, and was denied by the Board in December 2006, and that decision became final. 2. After the December 2006 denial, VA received the Veteran’s application for service connection for tinnitus on August 5, 2011. Prior to that date, and after the final denial, there was no document of record that could be construed as an earlier claim, formal or informal, for service connection for tinnitus. 3. The evidence of record does not establish that the September 2002 rating decision, or the subsequent February 2005 Board decision, that denied service connection for tinnitus under the provision of 38 U.S.C.§1151 was clearly and unmistakably erroneous, as the evidence of record is of the type that reasonable minds can differ about whether entitlement to benefits was warranted. CONCLUSION OF LAW 1. The criteria for an effective date earlier than August 5, 2011, for service connection for tinnitus, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The September 2002 rating decision that denied service connection for tinnitus did not contain CUE. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 7105; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to August 1973, and from December 1974 to August 1976. As a matter of procedural history, the Board notes that in the Veteran’s March 2014 notice of disagreement (NOD) the Veteran asserts a clear and unmistakable error (CUE) for his earlier denial of service connection for tinnitus, and his past denials for service connection for scars and headaches. The Board notes that CUE claims are distinct claims separation from that of new and material evidence, and cannot be considered part and parcel to those claims already on appeal, and therefore, those issues have been separated. Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated February 2012 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations, and VA and private health records. VA’s duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, there is no reasons or bases requirement imposed on examiners. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Rather, a medical opinion is adequate when it is based on consideration of a Veteran’s prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one. Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. 1. Earlier effective date than August 5, 2011, for service connection for tinnitus, to include CUE. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date for service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2)(i). Retroactive effective dates are allowed, to a certain extent, in cases where service connection or an increase of compensation is awarded pursuant to a liberalizing law. To be eligible for a retroactive payment under those provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that the eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Those provisions apply to original and reopened claims, and claims for increase. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a); McCay v. Brown, 9 Vet. App. 183 (1996). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155. An application is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196 (1992). On receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. With regard to the claim for an earlier effective date for tinnitus, the Board notes that the relevant question is whether there is any evidence prior to the Veteran’s August 2011 claim, and subsequent to the previous final denial, that could be construed as a claim for entitlement, formal or informal. The Board notes that a review of the relevant period reveals no evidence of record that demonstrates that the Veteran filed any kind of claim for service connection prior to August 2011, and after his previous denial. Here, the facts of the case are undisputed. In September 2002, the VA received the Veteran’s claim for service connection for tinnitus, and that claim was finally denied by the Board in December 2006. Later, in August 2011, the Veteran filed to reopen that claim, and service connection for tinnitus was ultimately granted by the RO in an April 2013 rating decision, and assigned an effective date of August 2011, the date of the Veteran’s claim to reopen. The Veteran subsequently contested the effective date of the claim, noting also the CUE was committed in his initial denial. Addressing these issues in turn, the Board finds that, in reviewing the evidence submitted during the time between the Veteran’s final Board denial in December 2006, and the subsequent claim in August 2011, the record shows no communication that could be considered a claim for service connection for tinnitus, formal or informal. The earliest document of record, during that period, is the Veteran’s claim to reopen the claim for service connection for tinnitus, received in August 2011. Prior to that document, no communications from the Veteran mentioned any claim for tinnitus. Lay statements submitted from the Veteran’s a few days prior to his August 8, 2011 claim, only noted the Veteran’s head injury during service, and noted nothing about tinnitus or even hearing loss. Therefore, the effective date for service-connected tinnitus can be no earlier than the date of receipt of the claim to reopen following a final denial. 38 C.F.R. §§ 3.102, 3.158(a); Sabonis v. West, 6 Vet. App. 426 (1994); 38 U.S.C. § 5107. Thus, the Board finds that August 5, 2011, the date of receipt of the claim is the appropriate effective date for service connection for tinnitus. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds that the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the Veteran’s claim for a CUE of the earlier denial for service connection for tinnitus, the Board notes that a thorough review of the evidence of record at that time, either by the RO or subsequently by the Board, demonstrates no CUE in its final determination denying service connection. There is a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. It must be more than a simple disagreement as to how the facts were weighed or evaluated. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 3 8 C.F.R. §§ 3.104 (a), 3.400(k). The Board has considered the issue of whether there was CUE in the November 2002 rating decision, and finds that there was no CUE in that decisions, in accordance with the laws and regulations extant at that time. In addition, that decision was subsumed by the December 2006 Board decision. A review of the service medical records notes no evidence of tinnitus during service, and the Veteran did not report experiencing any tinnitus or symptomatology indicative of tinnitus. The separation examination from service, to include a report of medical history completed by the Veteran upon exiting service was also silent for any reports of tinnitus, or symptoms such as ringing in the ears. It was not until the Veteran filed a claim for benefits, after leaving service, that the Veteran alleged having tinnitus since his service. Based on those findings, in the November 2002 rating decision, the RO denied service connection for tinnitus based on a finding that not only was there no evidence of tinnitus during service, such evidence also showed no complaints for such disability after service, until his claim. The Board observes that in a VA audiological examination conducted during the relevant period, the VA examiner concluded that based on the lack of medical or lay evidence of tinnitus during or after service, that such condition was not etiologically related to his active service. The Board finds that a close review of the record at the time shows no error that constitutes CUE when applying the applicable law to the facts as they existed at the time of the November 2002 rating decision. With no evidence of symptoms or manifestations of tinnitus during or directly after service, and a negative nexus opinion from a VA examiner, the Board cannot find that CUE was committed in denying the Veteran’s initial claim. The Board finds that in that determination, reasonable minds could differ in judgment, and therefore, the high bar of CUE is not met by the evidence of record. The Board acknowledges the main basis for the Veteran’s argument for CUE, in that tinnitus was subsequently granted based on the same record; however, the Board disagrees, that such is the case. Specifically, the Board notes that in the subsequent grant of service connection for tinnitus, it was in conjunction with a granted claim for hearing loss, of which it was found that the two conditions are interrelated. Additionally, the Board finds that simply because a claim is reopened and subsequently granted does not automatically make previous denials clearly and unmistakably erroneous. Accordingly, the Board finds no improper application of the applicable law at the time, and therefore, as the threshold question of application of law or fact does not exist, inquiry for CUE cannot be sustained. For these reasons, the Board finds that the rating decision of November 2002 did not contain CUE and was subsumed by the December 2006 Board decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.105 (a). REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. The Board notes that the Veteran has never been provided VA examination with regard to a claim for service connection for TBI. The Veteran contends that his condition was directly related to an in-service head injury, specifically from getting hit in the head by an ammunition box while in Korea. During the pendency of the claim, the Veteran presented evidence, to include corroborating lay statement from his fellow soldiers and witnesses of his in-service injury that he claims caused his TBI. The Veteran provided a statement from the actual soldier who caused the ammunition box to be dropped on his head, and the medic who claimed to have treated the Veteran’s head wound while in service. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the Veteran’s claim for TBI require a medical examination. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for scars and headaches, to include consideration for CUE is remanded. As the Veteran’s claims TBI, which is being remanded, stem from the same claimed incident that may have caused the Veteran’s claimed headaches, and scars, further development for the Veteran’s claim for TBI may reveal potentially relevant evidence for these ancillary claims. Therefore, the Board finds that the claim for TBI must be adjudicated prior to adjudicating the claims for scars or headaches, as the issues are inextricably intertwined. Therefore, the issues must be remanded also. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to a rating in excess of 40 percent for bilateral hearing loss is remanded. The Veteran was provided the most recent VA examination for hearing loss in February 2012, more than six and a half years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, further allegations of a worsening condition regarding both the Veteran’s hearing loss have been set forth by the Veteran since that examination. When available evidence is too old for an adequate evaluation of the Veteran’s current disability, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran’s claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians that are not already of record. 3. Schedule the Veteran for a TBI examination to be conducted by one of the four designated specialists, physiatrist, psychiatrist, neurologist, or neurosurgeon. The examiner should specifically state which of those credentials applies. The examiner should diagnose any disability manifested by dizziness, vertigo, headaches, memory loss, and/or disorientation and should state whether any findings represent residuals of head trauma. The examiner should opine whether it is as likely as not (50 percent probability or greater) that any head trauma residuals had their onset during active service; are etiologically related to in-service head injuries; or otherwise originated during active service. For purposes of providing the requested opinion, the examiner must explicitly speak to the occurrence of an in-service head trauma, to include the validity of such incident in causing any current disability associated with such claimed incident. The examiner should identify any residuals of the in-service head trauma and state whether or not there are any current residuals. 4. Schedule the Veteran for a VA examination to determine the severity of service-connected hearing loss disability. The examiner must review the claims file and should note that review in the report. The examiner should describe all symptoms related to the hearing loss and should discuss the effects of those symptoms on occupational function. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel