Citation Nr: 18149711 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-43 020 DATE: November 13, 2018 ORDER The application to reopen the claim of entitlement to service connection for a low back disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for tension headaches is granted. REMANDED Entitlement to service connection for lower back injury is disability. FINDINGS OF FACT 1. The RO previously denied the Veteran’s claim of entitlement to service connection for a low back disability in a March 2012 rating decision and the Veteran did not perfect an appeal to the Board. 2. Evidence obtained since the March 2012 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. The Veteran's tinnitus is attributable to active service. 4. Tension headaches are secondary to PTSD. CONCLUSIONS OF LAW 1. The March 2012 rating decision which denied entitlement to service connection for a left eye disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. Tinnitus was incurred during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 4. Tension headaches are due to service-connected PTSD. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2008 to October 2009. Additional relevant evidence for headaches have been associated with the claims file and which has not been reviewed by the AOJ. However, as the decision is favorable to the Veteran, a remand for AOJ consideration is not necessary. New and Material Evidence A claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides 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. A claim may be reopened based on new and material evidence. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Id. 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. Id. 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. Id. The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512–13 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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 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, 285 (1996). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. See id. 1. Low back The Veteran’s claim for service connection due to a low back injury was denied in a rating decision in March 2012. The rating decision noted the Veteran did not have a back injury in service. The evidence listed only the claim, a notice of failure to report for an examination, and a DD-214. However, given that the rating decision noted service records, at least some of the service records were reviewed, and, based on the receipt date, all service treatment records were associated with the file at the time. There is no evidence of consideration of post-service treatment records. The Veteran was notified of this denial that same month as the rating decision. The Veteran did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The March 2012 rating decision denied the claim based on there being no evidence of a back injury in service, specifically that service treatment records did not indicate an injury. The Veteran filed a second claim in November 2015. In support of the Veteran’s second claim, VA obtained new medical evidence that was not associated with the file prior to the March 2012 rating decision. Specifically, VA and private treatment records dated from 2010 to 2013, which all report compression fracture or possible developmental variant in the T12-L1-L2 area. Both the March 2010 and May 2013 treatment notes also contain transcriptions of the Veteran’s statements regarding working as a road grader in the U.S. Army and having injured her back while deployed in Afghanistan, respectively. The Veteran is competent to report what is lay observable, i.e. that she injured her back. The Veteran also either was told or believed she had a back fracture in service and, based on the 2010 treatment records, was told she had possible back fracture shortly after service. For purposes of reopening the claim, this evidence is presumed credible. There is evidence of treatment for back pain shortly after service. In these treatment records, service documented a possible compression fracture and the Veteran alluded or referred to events in service as a cause. Therefore, she has provided competent and credible evidence of an in-service compression fracture. This evidence relates to an unestablished fact necessary and raises a reasonable possibility of substantiating the Veteran’s claim, as it directly concerns the occurrence of an in-service injury. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. This new evidence is neither cumulative nor redundant of the evidence previously submitted. The Board concludes that the criteria for reopening the claim for service connection for a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The claim is reopened and remanded for further development. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Tinnitus The Veteran claims her tinnitus started in service. The Veteran has tinnitus, this is confirmed by an October 2013 VA otolaryngology treatment note, a January 2016 VA examination, and a September 2016 VA primary care treatment. These documents state that bilateral tinnitus (ringing in the ears) was intermittent, occurring about once a week, and was high-pitched. The Veteran described tinnitus has having a gradual onset in service, exasperated by loud sounds such as gun or mortar fire. The Veteran reported exposure to loud sounds in service, including gunfire and motor attacks. See October 2015 VA Form 21-526EZ; September 2016 VA primary care treatment note. The Veteran served in Afghanistan for over a year per her form DD-214. Her MOS was construction equipment operator. Given her service in Afghanistan and her MOS, exposure to high levels of noise from gun or mortar fire and operating equipment is likely. The Veteran also has low-to-middle frequency sensorineural hearing loss. See October 2013; January 2014 VA treatment record; January 2016 VA examination. Sensorineural hearing loss is noise-induced, caused either by a single very loud noise – acoustic trauma hearing loss – or by prolonged exposure to high levels of noise. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 825 (32nd ed. 2012). This supports a finding of acoustic trauma or prolonged exposure to high levels of sound at some point. The Veteran’s post-service jobs include working waitress, hostess, gas station attendant, and administrative assistant, as well as possibly working in other office settings – there is a recent reference to working in a cubicle. She also attended college fulltime. There are no hobbies noted in the record that involve excessive noise or acoustic trauma. Therefore, there is no evidence of record of acoustic trauma other than her military service. A VA audiological examination was undertaken in January 2016. The examiner stated that in the absence of an objectively verifiable noise injury shown in audiograms, the association between claimed tinnitus and noise exposure was speculative. However, the examiner based this opinion on a January 2011 audiogram, but there is no such document in the evidence of record. Moreover, the Veteran only established care with the VA in 2012, and the first post-service audiological examination in the e-Folder occurred in September 2013. As a result, the Board gives the opinion less probative weight, as it appears to have incorrectly interpreted the basic facts of the case. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008) (noting a medical opinion is given weight when based upon sufficient facts or data). Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an organic disease of the nervous system under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service noise exposure, the Veteran’s reports of recurrent tinnitus during service, and reports of a continuity of symptomatology from service. The Board does note that service treatment records do not specifically document any relevant complaints or diagnoses of tinnitus itself. However, considering the credible reports of in-service noise exposure, the Veteran’s competence to identify tinnitus, and her generally consistent reports of onset in service of recurrent tinnitus and continuity thereafter. Given the above, the Board will give the benefit of the doubt to the Veteran and conclude that entitlement to service connection for tinnitus is warranted and the claim is therefore granted. 3. Tension headaches Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). During a VA examination in December 2015, an examiner diagnosed the Veteran with tension and traumatic headaches. The examiner noted that the Veteran’s headaches were due to anxiety and emotional distress as well as a lack of sleep. Both a December 2017 VA Gulf War examination and a September 2018 VA contractor PTSD examination also reported headaches were a symptom, or were common, with people who have anxiety. According the September 2018 VA examination, PTSD is the only diagnosed mental disorder. The Veteran is service-connected for PTSD and her symptoms of PTSD includes anxiety and distress. As all the above medical opinions relate headaches to a service-connected disability associated with anxiety, the claim for service connection for headaches is granted. REASONS FOR REMAND The claim for service connection for residuals of a low back injury is reopenend and remanded for consideration on the merits. Additionally, a VA examination is necessary to determine current disability and etiology. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner is asked to opine whether a back disability is at least as likely as not related to an in-service injury, event, or disease, including an injury to the low back or compression fracture in service. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel