Citation Nr: 18155411 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-37 410 DATE: December 4, 2018 ORDER New and material evidence having been received, the claim for service connection for benign paroxysmal positional vertigo (BPPV) is reopened. Service connection for BPPV is granted. A disability rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for a right eye disability is remanded. Service connection for a left eye disability is remanded. Compensation under 38 U.S.C. §1151 for a right eye disability is remanded. A disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse disorder is remanded. An effective date earlier than July 30, 2014 for the award of service connection for PTSD with depressive disorder and alcohol abuse disorder is remanded. FINDINGS OF FACT 1. A March 2012 rating decision denied a claim for service connection for BPPV. There was no material evidence pertinent to the claim received within one year of the issuance of that decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 2. The evidence pertaining to BPPV received after the March 2012 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s BPPV was related to service 4. The Veteran's service-connected tinnitus was assigned a 10 percent rating for the entire appeal period, which is the maximum schedular rating authorized for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The March 2012 rating decision denying for service connection for BPPV is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the March 2012 rating decision is new and material, and the claim for service connection for BPPV is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for BPPV have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1954 to January 1963 in the United States Air Force. He died in September 2017. For claimants who died on or after October 10, 2008, 38 U.S.C. § 5121A permits an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. The appellant, who is the Veteran's widow, has been substituted for him pursuant to 38 U.S.C. § 5121A. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). With regard to the claims for service connection for the bilateral eye disabilities, the RO previously denied a claim for bilateral pseudophakia, with right eye central retinal vein occlusion, hypertensive retinopathy, and glaucoma in a March 2012 rating decision. A determination as to whether the present claims are properly characterized as claims for service connection or applications to reopen previously denied claims would be premature, given that additional development is required and further medical evidence may be received concerning the Veteran’s diagnoses. See, e.g., Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim.) The electronic filing system contains medical records that were associated with the file by VA, rather than the appellant, since the RO’s last readjudication of the claims without a waiver of RO jurisdiction. See 38 U.S.C. § 7105(e)(1), (2) (2012) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). However, as the claim for vertigo is being granted, and the records are not pertinent to the tinnitus claim, there is no risk of prejudice to the appellant from proceeding without the waiver. Vertigo Generally, 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, 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 received, 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In considering the claim, the Board considered whether the Veteran had new or distinct diagnoses in accordance with the Federal Circuit’s guidance in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). However, as a review of the record indicates that the Veteran’s diagnosis of BPPV did not change since the last final denial, Boggs does not apply. In a rating decision of March 2012, the RO denied service connection for BPPV. The evidence consisted of statements from the Veteran, service treatment records (STRs), VA examination reports, private medical records, and VA treatment records. The RO denied the claim because STRs did not document BPPV, and a January 2012 VA examiner opined that the BPPV was related to head trauma sustained after service. There was no material evidence received within one year of the issuance of the March 2012 decision. The Veteran was notified of that decision and of his appellate rights but did not appeal. The March 2012 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. Neither he nor the appellant raised a motion to revise that decision based on clear and unmistakable error. Pertinent evidence added to the claims file since March 2012 includes a September 2016 opinion by Dr. S. In his report, Dr. S. opined that the Veteran’s BPPV was caused by excessive noise exposure in service. The Board notes that in-service acoustic trauma, resulting from the performance of his military occupational specialty duties with the Air Force crash and rescue team, has already been accepted by VA. See March 2012 rating decision (awarding service connection for tinnitus). Dr. S. explained that BPPV is a condition resulting from loose debris that collect within the inner ear, and can occur due to the degeneration of inner-ear hair cells. Debris floating around the inner ear affect the inner hair cells, causing them to move and resulting in vertigo. Dr. S. found that the Veteran’s service for nearly nine years in close proximity to jet engines caused significant noise trauma, and greatly impacted his inner hair cells. This evidence is “new” in that it was not before the RO in March 2012, and is not duplicative or cumulative of evidence previously of record. This evidence is also “material” as it lends support to a necessary element of the Veteran’s claim for service connection, that of a nexus between BPPV and service. When viewed in the context of the reason for the prior denial, the added evidence cures a prior evidentiary defect. Accordingly, the criteria for reopening the claim are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board further finds that service connection is warranted for BPPV. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The record clearly establishes a diagnosis of BPPV prior to the Veteran’s death, and in addition to the accepted in-service noise exposure, a January 1961 STR also documents dizziness. The only evidence on the matter of direct service connection contrary to the findings of Dr. S. is a January 2012 VA examination report. The January 2012 VA examiner attributed the Veteran’s BPPV to multiple post-service horse accidents. While the record shows the Veteran worked as a jockey after service, it is unclear on what evidence the examiner’s finding of post-service head trauma, or multiple horse accidents, was based. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate). Indeed, the Veteran and his daughter disputed the occurrence of post-service head traumas. Thus, the January 2012 examiner’s opinion is of diminished persuasive value. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the appellant’s favor, the Board concludes that service connection is warranted for BPPV. The report of Dr. S. is adequate for adjudication. He based his conclusion on a review of the entire claims file, and provided a rationale based on medical literature regarding the impact of noise exposure on the inner ear. While the record also contains conflicting opinions on the matter of secondary service connection, discussion in this regard is unnecessary as direct service connection may be awarded. At a minimum, the evidence is at least in equipoise in showing that the Veteran’s BPPV was attributable to service. In resolving all reasonable doubt in the appellant’s favor, service connection is warranted. Tinnitus Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. In a March 2012 rating decision, service connection for tinnitus was granted. The Veteran was assigned a 10 percent rating, effective from his August 31, 2011 date of claim. In an April 2013 rating decision, and in the March 2015 rating decision on appeal, the 10 percent rating was continued. The appellant seeks entitlement to a disability rating in excess of 10 percent for tinnitus. In a Disability Benefits Questionnaire (DBQ) dated from January 2012, the Veteran reported experiencing recurrent tinnitus since 1985 that had no impact on ordinary conditions of daily life. On VA examination in March 2013, he reported having recurrent tinnitus for the past 10-15 years which had no impact on ordinary conditions of daily life. No other symptoms were reported. Pursuant to the rating schedule, a maximum 10 percent evaluation is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic 6260. Only a single evaluation may be assigned, whether the sound is perceived in one ear, both ears, or in the head. Id. at Note (2); see Smith v. Nicholson, 451 F.3d. 1344 (2006). Accordingly, the Veteran's tinnitus was assigned the maximum schedular rating throughout the appeal period. There is no legal basis upon which to award a higher schedular evaluation. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), REASONS FOR REMAND In a December 2016 rating decision, the RO granted service connection for PTSD with depressive disorder and alcohol abuse disorder. In a June 2017 rating decision, the RO awarded an earlier effective date for the award of service connection for the disability. Before he died, in August 2017, the Veteran filed a timely notice of disagreement (NOD) with these decisions. Similarly, in a February 2017 rating decision, the RO denied compensation under 38 U.S.C. §1151 for a right eye disability. In May 2017, before he died, the Veteran filed a timely NOD with that decision. A review of the record and VA’s internal systems does not indicate that these claims are being properly processed by the RO. They must be remanded for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The claims on appeal for service connection for right and left eye disabilities must be remanded for outstanding VA treatment records. In March 2014, the Veteran asked VA to obtain his treatment records from the VA Central Texas Health Care System. In July 2016, he asked VA to obtain his treatment records from the VA Medical Center (VAMC) in Jackson, Mississippi. Records from these facilities have not been obtained and must be associated with the file. The matters are REMANDED for the following action: 1. Issue the appellant a SOC on the following claims: (i.) a disability rating in excess of 50 percent for PTSD with depressive disorder and alcohol abuse disorder; (ii.) effective date earlier than July 30, 2014 for the award of service connection for PTSD with depressive disorder and alcohol abuse disorder; and (iii.) compensation under 38 U.S.C. §1151 for a right eye disability (Continued on the next page)   2. Obtain the Veteran’s VA treatment records from the Central Texas Veterans Health Care System in Temple, Texas, and the VAMC in Jackson, Mississippi. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel