Citation Nr: 18146347 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-37 692 DATE: October 31, 2018 ORDER The appeal to reopen a claim of service connection for low back condition is granted. A rating in excess of 10 percent for service-connected tinnitus is denied. REMANDED Service connection for low back condition is remanded. Service connection for sleep apnea is remanded. Service connection for restless leg syndrome (RLS) is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction, onychomycosis, and hypertension (diabetes) is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to an earlier effective date for the grant of service connection for diabetes is remanded. Entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss is remanded. Entitlement to an earlier effective date for the grant of service connection for tinnitus is remanded. FINDINGS OF FACT 1. By March 1976 rating decision, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for back injury; the Veteran did not appeal this decision or submit new and material evidence within one year of that decision. 2. Subsequent to the March 1976 rating decision, there was evidence associated with the claims file that is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for low back condition. 3. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, the maximum schedular rating authorized under VA regulatory provisions. CONCLUSIONS OF LAW 1. The March 1976 rating decision that denied the Veteran’s claim of entitlement to service connection for back injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. Evidence received since the final March 1976 determination is new and material, and the Veteran’s claim for entitlement to service connection for low back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States (U.S.) Navy from June 1969 to September 1970 and the U.S. Air Force from February 1991 to May 1991, with additional service in the Navy Reserves, Army Reserves, and Air Force Reserves. Regarding the Veteran’s claim for service connection for low back condition, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has characterized the claim accordingly. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for low back condition Generally, a claim which has been denied in a final unappealed RO decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The RO denied the Veteran’s claim for entitlement to service connection for back injury in a March 1976 rating decision based on a finding that there was no evidence of back injury in service and post-service imaging showed only congenital abnormality. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision; therefore, it is final. Subsequent to the March 1976 rating decision, the Veteran had another period of active duty service medical records, reserve service medical records, and lay statements. This evidence qualifies as new evidence because it was not of record at the time of the March 1976 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for back condition. Thus, this new evidence raises a reasonable possibility of substantiating the Veteran’s service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for low back condition. 2. Entitlement to a rating in excess of 10 percent for service-connected tinnitus A March 2013 rating decision granted service connection for tinnitus with an evaluation of 10 percent. The Veteran’s tinnitus is rated under DC 6260. 38 C.F.R. § 4.87. Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for GERD 2. Entitlement to service connection for RLS 3. Entitlement to service connection for sleep apnea 4. Entitlement to service connection for low back condition First, in addition to the Veteran’s documented active duty service, the Veteran reports he served in the Navy Reserves from 1968 to 1969, the Army Reserves from 1978 to 1983, and the Air Force Reserves from 1983 to 1993. See August 2013 notice of disagreement (NOD) and July 2016 VA Form 9. On remand, steps should be taken to request the Veteran’s active duty and reserve personnel records and verify any periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). With regard to the RLS claim, the Veteran reported he was diagnosed with RLS by Dr. J.S. and testing was performed at Christus Santa Rosa Hospital around 1989-1990. See January 2011 statement. These records are not part of the claims file and it does not appear VA attempted to retrieve these records. With regard to the sleep apnea claim, the Veteran contends he experienced sleep apnea symptoms since Vietnam, but it was not diagnosed until after service. See January 2011 statement. While the Veteran is competent to report symptoms he experienced in service, a medical opinion is necessary to determine if the symptoms he experienced in service were as likely as not manifestations of his later diagnosed sleep apnea. With regard to the low back condition claim, the Veteran reported on two occasions that he received treatment for back injury at the San Diego Naval Dispensary/Hospital during active service in July 1969. These records are not part of the claims file and it does not appear VA attempted to retrieve these records. In addition, VA denied the Veteran’s claim for low back pain based on a finding that his back pain is due to a congenital abnormality. The Veteran contends his back pain started or was aggravated during service. The Board finds a medical examination and opinion is necessary to determine the nature and etiology of the Veteran’s back pain. 5. Entitlement to a rating in excess of 20 percent for diabetes with erectile dysfunction, onychomycosis, and hypertension The Veteran contends he is entitled to a higher rating for his service-connected diabetes mellitus, including that his erectile dysfunction, onychomycosis, and hypertension warrant compensable ratings and should be separately rated. A VA examination was last provided for these conditions in February 2013. The Board finds a contemporaneous examination is warranted to ensure the record reflects the current severity of the Veteran’s service-connected diabetes with erectile dysfunction, onychomycosis, and hypertension. 6. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends he is entitled to a higher rating for his service-connected hearing loss. A VA audiological examination was last provided for the Veteran in January 2013. The Board finds a contemporaneous examination is warranted to ensure the record reflects the current severity of the Veteran’s service-connected bilateral hearing loss. 7. Entitlement to an earlier effective date for the grant of service connection for diabetes 8. Entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss 9. Entitlement to an earlier effective date for the grant of service connection for tinnitus A March 2013 rating decision granted service connection diabetes, bilateral hearing loss, and tinnitus, effective November 29, 2010. The Veteran submitted a timely notice of disagreement arguing the effective date of these claims should be prior to November 29, 2010. The RO has not issued a SOC regarding these issues. As such, these issues must be remanded for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his active duty service and service in the Navy Reserves, Army Reserves, and Air Force Reserves. See August 2013 NOD and July 2016 VA Form 9. Verify any active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) dates for his service in the Navy Reserves, Army Reserves, and Air Force Reserves. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information and responses in the claims file. 2. Obtain the Veteran’s VA treatment records from April 2012 to the present. 3. Obtain treatment records from the Naval Dispensary/Hospital in San Diego, California from July 1969 to September 1969. Document all requests for information and responses in the claims file. 4. Ask the Veteran to complete a VA Form 21-4142 for Dr. J.S. and Christus Santa Rosa Hospital from January 1989 to December 1990. See January 2011 statement. Make two requests for the authorized records, unless it is clear that a second request would be futile. 5. After the above records development is completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his low back pain. Any necessary imaging should be performed. The examiner should: (a.) Identify any diagnoses related to the Veteran’s low back pain found in the claims file or on examination. (b.) If a diagnosis of spina bifida occulta is found, explain whether spina bifida occulta is a congenital defect or disease. For VA purposes, a disease generally refers to a condition considered capable of improving or deteriorating, whereas a defect generally refers to a condition not considered capable of improving or deteriorating. (c.) If determined to be a congenital defect, opine whether it is at least as likely as not (50 percent or greater probability) the Veteran incurred a superimposed injury or disease during active service that resulted in additional disability of the spine? (d.) If it is determined to be a congenital disease, opine whether it is clear and unmistakable (undebatable) that his spina bifida occulta of the spine WAS NOT aggravated (non-temporary increase in severity) during active service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress? (e.) For any identified back disability that is not a congenital defect or disease, is it at least as likely as not (50 percent or greater probability) that the diagnosed disability had its onset during active service or is otherwise etiologically related to his active service? The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology of his sleep apnea. Specifically, the examiner should: (a.) Identify the sleep-related symptoms the Veteran reports he experienced in service. (b.) Opine whether those sleep-related symptoms are as likely as not (50 percent or more probability) manifestations of his later diagnosed sleep apnea? The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Schedule the Veteran for examinations by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus with erectile dysfunction, onychomycosis, and hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability and discuss the effect of each disability on occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate 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). 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s hearing loss under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to hearing loss alone and discuss the effect of the Veteran’s hearing loss on occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate 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). (Continued on the next page)   9. Issue to the Veteran and his representative an SOC regarding the issues of entitlement to an earlier effective date for the grant of service connection for diabetes, entitlement to an earlier effective date for the grant of service connection for hearing loss, and entitlement to an earlier effective date for the grant of service connection for tinnitus. See August 2013 NOD. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel