Citation Nr: 18148460 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 05-31 798 DATE: November 8, 2018 ORDER The claim of service connection for status post excision of cysts, near right eye and right ear, upon presentation of new and material evidence, is reopened. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for status post excision of cysts, near right eye and right ear is remanded. Entitlement to an evaluation higher than 10 percent for carpal tunnel syndrome, status-post right forearm laceration is remanded. Entitlement to a total disability rating due based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to retroactive payment from an increased combined evaluation to 20 percent for the months of May and June 2007 is remanded. Entitlement to retroactive payment from an increased evaluation to 10 percent for his laceration scar, right forearm, for the month of August 2009 is remanded. FINDINGS OF FACT 1. By a September 2010 Board decision, the petition to reopen the claim for service connection for excision of cysts, near right eye and right ear, most recently was denied. 2. Since then, additional evidence has been received that relates to an unestablished element necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The September 2010 Board decision that denied the Veteran’s petition to reopen the claim for service connection for excision of cysts, near right eye and right ear, has become final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 20.1100 (2018). 2. The criteria to reopen the previously denied claim have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The RO originally denied service connection for cyst removal by August 2003 unappealed rating decision. The Veteran filed a petition to reopen, denied then by a February 2005 rating decision. Thereafter, the Board’s March 2010 decision denied the petition to reopen again, having found that the key element of causation was not established, that is, the established finding that Veteran had a cyst removal disability that was related to an in-service disease or injury. The Board’s decision thereafter became final because there was no appeal to the U.S. Court of Appeals for Veterans Claims (Court). See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200 (2018). A petition to reopen the matter was received January 2017. When a claim to reopen is presented under § 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board will consider the evidence of record since the March 2010 Board decision denying the Veteran’s petition to reopen, as this constituted the last final denial of the claim. Juarez v. Peake, 21 Vet. App. 537 (2008). There are additional statements of records recently received, which have a bearing on the outcome of this case. The December 2016 lay witness statement from the Veteran’s son, M. K., states that the Veteran had issues with boils in the region of the ear going back to May 1987. Further indicated were symptoms returning in the early-90s. The November 2016 lay witness statement from the Veteran’s sister, S. E., indicates the information and observation that the Veteran had this symptomatology going back to 1987. The foregoing statements sufficiently refer to the key issue of causation and whether there were any continuous symptoms following and since separation from service. Therefore, the Board concludes that “new and material evidence” has been presented, and the claim for service connection for cyst removal is deemed reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Board previously considered this matter in March 2013, having issued a decision/remand. The decision portion reopened the previously denied claim for service connection for tinnitus. By remand, the Board returned the case to the Regional Office (RO) for further development the reopened claim for service connection for tinnitus, and the additional matters referenced herein. The claims seeking retroactive payment of compensation benefits were remanded for the timely issuance of a Statement of the Case (SOC). 1. Entitlement to service connection for tinnitus is remanded. The Veteran underwent a VA audiological examination in March 2017. Whereas the VA examiner considered and opined that the Veteran’s diagnosed tinnitus less likely than not was “caused by or a result of military noise exposure,” objectively speaking there was not a rationale other than to state that it was due to hearing loss. Generally, for VA claims purposes, an opinion must be considered as to the clinical data used to formulate the opinion, its rationale, or any other factors that would give it substance. Bloom v. West, 12 Vet. App. 185, 187 (1999). On these grounds, a supplemental opinion is being requested which takes into appropriate account the Veteran’s reported history of noise exposure consistent with his military occupational specialty (MOS) of having been an Armor Crewman, which as the Veteran indicated he had some continued exposure from the practice of having been near artillery fire and also working while aboard tanks. 2. Entitlement to service connection for a neck disorder is remanded. At a March 2017 VA examination, the examiner provided a negative opinion on the subject of causation of a neck disorder, or otherwise a cervical spine condition, the Board observes and on having reviewed the Veteran’s attorney’s June 2018 argumentation in this case, that there is additional evidence warranting some consideration. Namely, the 1997 VA medical record stating that the Veteran had neck pain, which had radiated down his right side along the arm. Also, there was recently forwarded a medical journal article stating to the effect, that cervical spondylosis developed often from physical overuse and some occupational duties, which findings the Veteran’s attorney has requested be reviewed and considered in regard to this particular case. A supplemental opinion is therefore requested on this matter. 3. Entitlement to service connection for status post excision of cysts, near right eye and right ear is remanded. The Board having reopened this claim, the Regional Office should reconsider the underlying claim on a de novo basis. The claim on appeal is then being remanded for VA examination and opinion to determine whether the Veteran’s current condition status-post excision of the cysts, these in the region of the right eye and right ear. The examination should take into review and consideration that evidence which demonstrates the likelihood as stated by the third lay witness statements that the Veteran had one or more cysts of or near the regions in question, going back to around 1987. 4. Entitlement to an evaluation higher than 10 percent for carpal tunnel syndrome, status-post right forearm laceration is remanded. In June 2018 argumentation, the Veteran’s attorney raises the issue of the adequacy of the Veteran’s March 2017 examination for the condition of right side carpal tunnel syndrome. The attorney specified that it did not provide a clear indication of the Veteran’s overall severity of condition; it did not discuss the Veteran’s past history of having had issues with carpal tunnel syndrome. The Board is accordingly requesting a new examination for the purpose of comprehensive findings. 5. Entitlement to a TDIU is remanded. The claim for entitlement to a TDIU is inextricably intertwined with the claims being remanded, and therefore its disposition is deferred pending the outcome of those matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). 6. Entitlement to retroactive payment from an increased combined evaluation to 20 percent for the months of May and June 2007 is remanded. 7. Entitlement to retroactive payment from an increased evaluation to 10 percent for his laceration scar, right forearm, for the month of August 2009 is remanded. The issue at hand presented by these claims requires some clarification. As stated within the applicable Statements of the Case (SOCs) the issue is reduction in rating during a period of incarceration as that is required by applicable provisions. In contrast however, the Veteran by January 2016 states that the issue he is raising concerns instead retroactive compensation due to “the back payments from the time I filed my claims for the increase.” Based on this stated concern, these two claims regarding retroactive compensation should be remanded for the Veteran to have an opportunity to clarify the precise benefit he is seeking, an opportunity to provide the exact time period and monthly benefit to which is specifically referred. Then the Regional Office can provide a Supplemental SOC (SSOC) which addresses the matter and any additional argumentation provided. The matters are REMANDED for the following action: 1. Send the Veteran correspondence requesting that he provide a complete explanation for the specific benefit or claims outcome requested, in regard to seeking additional and retroactive compensation (for the claim seeking recovery for May / June 2007; and August 2009). Request that he state in regard to the recovery sought, the exact time period and monthly benefit to which is specifically referred. Then reconsider any additional arguments raised. 2. Return the claims file to the March 2017 VA examiner for a supplemental opinion regarding the etiology of tinnitus. If that examiner is no longer available, provide the claims file to a similarly qualified clinician. A new examination of the Veteran is only necessary if deemed so by the examiner. (If so, take appropriate measures to schedule the examination based on what is needed to conduct an examination of an incarcerated claimant.) The examiner must opine whether tinnitus is at least as likely as not related to the Veteran’s active military service, while specifically taking into proper and complete consideration: a) the Veteran’s reported history of having had noise exposure consistent with an MOS as an Armor Crewman, where he indicated noise exposure attributable to having been stationed near artillery fire, and also while aboard tanks; b) any medical or scientific journal articles offered to substantiate the claim. It is further requested that the VA examiner provide a comprehensive medical opinion rationale and directly state this rationale. 3. Return the claims file to the March 2017 VA examiner for a supplemental opinion regarding the etiology of a neck disorder. If that examiner is no longer available, provide the claims file to a similarly qualified clinician. A new examination of the Veteran is only necessary if deemed so by the examiner. (If so, take appropriate measures to schedule the examination based on what is needed to conduct an examination of an incarcerated claimant.) The examiner must opine whether a neck condition is at least as likely as not related to the Veteran’s active military service, while specifically taking into proper and complete consideration: a) the 1997 VA medical record stating that the Veteran had neck pain, which had radiated down his right side along the arm; as well as a November 2002 similar report, which overall it is maintained effectively demonstrates likelihood of continuity of symptomatology; b) a medical journal article stating to the effect, that cervical spondylosis developed often from physical overuse and some occupational duties (referenced within the June 2018 communication from the Veteran’s attorney, and to the extent consistent with those particular circumstances of this case). A complete rationale should be provided for the opinion offered. 4. Schedule the Veteran for a VA examination with an appropriate clinician. The claims file must be provided to and reviewed by the examiner in conjunction with the examination, along with a copy of this remand. All findings should be set forth in detail. (Please take appropriate measures to schedule the examination based on what is needed to conduct an examination of an incarcerated claimant.) The VA examiner should indicate all present symptoms and manifestations attributable to the Veteran’s carpal tunnel syndrome of the right forearm. 5. Review the claims file. If the directives specified in this remand have not been implemented, take appropriate corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 6. Then readjudicate the claims on appeal in light of all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel