Citation Nr: 18148898 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-03 562 DATE: November 8, 2018 ORDER New and material evidence having been received, the claim for service connection for tinnitus is, to this extent only, reopened. New and material evidence having been received, the claim for service connection for a heart condition, to include ischemic heart disease and occlusion and stenosis of the carotid artery is, to this extent only, reopened. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a heart condition, to include ischemic heart disease and occlusion and stenosis of the carotid artery, is remanded. FINDINGS OF FACT 1. A September 2008 rating decision denied the Veteran’s claim of service connection for tinnitus; the Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within a year of its issuance. 2. Evidence received since the September 2008 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus; and raises a reasonable possibility of substantiating such claim. 3. A February 2012 rating decision denied the Veteran’s claim of service connection for a heart condition; the Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within a year of its issuance. 4. Evidence received since the February 2012 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a heart condition; and raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied a claim for service connection for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, and the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The February 2012 rating decision that denied a claim for service connection for a heart condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received, and the claim for service connection for a heart condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Relating to the Veteran’s claim for a heart condition, the Veteran originally filed a claim specifically for ischemic heart disease. However, based on the nature of the Veteran’s heart diagnoses, and information submitted or developed in support of the claim, the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for a heart disability, to include ischemic heart disease and occlusion and stenosis of the carotid artery. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also notes that in the August 2014 rating decision on appeal, the Veteran appealed a denial of service connection for posttraumatic stress disorder. In a July 2015 VA Form 21-4138, Statement in Support of Claim, submitted by the Veteran’s representative, he indicated that the Veteran wanted to “drop his appeal for PTSD.” As such, the Board does not have jurisdiction over a claim seeking service connection for posttraumatic stress disorder. New and Material Evidence The Veteran has asserted that he is entitled to service connection for a heart disability and tinnitus. The Veteran originally filed a claim for tinnitus in May 2008 and was denied in September 2008. He filed a petition to reopen in July 2013, and the RO declined to reopen in an October 2013 rating decision. The Veteran submitted additional evidence in November 2013 and in an August 2014 rating decision the RO again declined to reopen the claim for service connection for tinnitus. The Veteran first filed his claim for a heart condition in September 2011 and was denied in a February 2012 rating decision. The Veteran filed a petition to reopen his claim for service connection for a heart condition in July 2013, and in an October 2013 decision the RO declined to reopen the claim. Due to additional evidence submitted in November 2013 by the Veteran, the RO issued another rating decision in August 2014 where they reopened but denied the Veteran’s claim for a heart condition. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “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. 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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus As noted above, the Veteran contends that he is entitled to service connection for tinnitus. A September 2008 rating decision denied service connection for tinnitus based on a finding that there were no complaints of tinnitus in service, no event in-service, and no evidence of a nexus between service and the current diagnosis of tinnitus. The Veteran did not file a notice of disagreement and new and material evidence was not actually or constructively received within a year of the rating decision. Therefore, the September 2008 rating decision is final as to the denial of service connection for tinnitus. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see Turner v. Shulkin, 29 Vet. App. 207 (2018). The evidence of record at the time of the September 2008 rating decision consisted of the Veteran’s DD-214, service treatment records (STRs), VA treatment records, a May 2008 VA 21-4138, Statement in Support of Claim, and a VA examination from July 2008. The evidence associated with the claims file after the September 2008 rating decision includes a November 2013 Buddy Letter from Mr. A., updated VA treatment records, and his VA Form 9, Substantive Appeal. All of the evidence listed above is new in that it was not of record at the time of the September 2008 rating decision. Specifically, the November 2013 Buddy Letter from Mr. A. is new, in that it was not previously of record. The November 2013 Buddy Letter, which detailed many instances in which the Veteran was in combat in Vietnam, is also material as it provides a more detailed description of the circumstances of his service. Further, the VA Form 9, indicates that he has an opinion from Dr. E. It is unclear whether the opinion relates to the claim of service connection for tinnitus; however, this evidence indicates the existence of a private nexus opinion and thus relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. As new and material evidence has been received to reopen the claim for service connection for tinnitus, reopening the claim is warranted. 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart condition, to include ischemic heart disease and occlusion and stenosis of the carotid artery The Veteran contends that he is entitled to service connection for a heart condition. A February 2012 rating decision denied service connection for ischemic heart disease based on a finding that he had no heart condition that was associated with herbicide agent exposure, for which exposure has been conceded. The Veteran did not file a notice of disagreement and new and material evidence was not actually or constructively received within a year of the rating decision. Therefore, the February 2012 rating decision is final as to the denial of service connection for ischemic heart disease. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see Turner, 29 Vet. App. 207. The evidence of record at the time of the February 2012 rating decision consisted of the Veteran’s DD-214, STRs, and VA treatment records. The evidence associated with the claims file after the February 2012 rating decision includes updated VA treatment records, and his VA Form 9, Substantive Appeal, in which the Veteran claims to have an opinion from Dr. E. The evidence listed above is new in that it was not of record at the time of the February 2012 rating decision. Specifically, the VA Form 9 which indicates there is a positive opinion from Dr. E. is new in that it was not previously of record. The December 2015 VA Form 9 is also material as the claim was initially denied based on the premise that the Veteran did not have a diagnosis that is presumed to be related to his exposure to herbicide agents, or a positive nexus opinion. Since the lack of a positive nexus was the basis for denial of the claim for a heart condition in the prior decision, the evidence indicating the existence of a private nexus opinion relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. As new and material evidence has been received to reopen the claims for service connection for a heart condition, reopening the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. As the claim for service connection for tinnitus is reopened, the Board must now shift to evaluating the claim on the merits. Unfortunately, a remand is necessary. In the December 2015 VA Form 9, the Veteran indicated he has an opinion from Dr. E. However, he did not specify whether this opinion related to his tinnitus or his heart condition and the indicated opinion is not of record. As such, a remand is required to ensure all relevant outstanding opinions or treatment records are of record for evaluation. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). The Veteran was provided a VA examination in July 2008. The VA examiner found that the Veteran had recurrent tinnitus. She noted that the Veteran had in-service noise exposure from artillery during his service in the infantry in Vietnam during the Tet Offensive. She also noted he worked in construction after service, but that he wore hearing protection. She opined that his tinnitus was not likely due to his military service. However, she did not provide a rationale for this opinion. As such, the July 2008 VA examination opinion is inadequate for rating purposes, and a new examination should be provided on remand. In addition, the Veteran should be provided the opportunity to submit any additional lay or medical evidence he may have regarding the development of the claimed tinnitus or any information regarding the continuity of symptoms of tinnitus as he experiences them. 2. Entitlement to service connection for a heart condition, to include ischemic heart disease is remanded. As the claim for service connection for a heart condition is also reopened, the Board must now shift to evaluating the claim on the merits. However, a remand is necessary in this instance also. As noted above, in the December 2015 VA Form 9, the Veteran indicated he has an opinion from Dr. E.; however, he did not specify whether this opinion related to his tinnitus or his heart condition and the indicated opinion is not of record. As such, a remand is required to ensure all relevant outstanding opinions or treatment records are of record for evaluation. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). The Board notes that the Veteran was also provided a VA examination in November 2015 addressing his claim for ischemic heart disease. However, the Board finds that examination to be inadequate for rating purposes. When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The VA examiner found that the Veteran had no heart conditions. However, VA treatment records indicate that the Veteran has occlusion and stenosis of the carotid artery, which was on VA treatment records at the time of the November 2015 VA examination. As such, on remand, the Veteran is entitled to an adequate VA examination for his claimed heart conditions, to include claimed ischemic heart disease, occlusion and stenosis of the carotid artery, and any other diagnoses found upon examination. The matters are REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him VA Form 21-4142, obtain any identified records from Dr. E., as noted in the December 2015 VA Form 9, and any additional private records showing treatment for his claimed tinnitus or heart condition, as identified by the Veteran. Request that he submit any other additional evidence regarding his tinnitus and heart condition, including any lay evidence. 2. Following the completion of 1 above, schedule the Veteran for an audiological examination to determine the nature and etiology of the claimed tinnitus. The clinician must opine whether it is at least as likely as not that recurrent tinnitus is related to his in-service acoustic trauma during his engagement in combat with the enemy in Vietnam. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Following completion of 1 above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed heart condition. The clinician must first identify all heart conditions the Veteran has had during the pendency of the claim, including occlusion and stenosis of the carotid artery. For each identified heart condition, including occlusion and stenosis of the carotid artery, the clinician must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including presumed exposure to herbicide agents in service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel