Citation Nr: 20004103 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-17 558 DATE: January 16, 2020 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a thoracolumbar spine disability is granted. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a cervical spine disability is granted. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for headaches, to include as secondary to a cervical spine disability, is granted. REMAND Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for headaches, to include as secondary to a cervical spine disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a cervical spine disability, is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file since the June 2003 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 2. Since May 2003, VA has been on notice of the existence of VA medical center (VAMC) records not previously obtained, which relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for a thoracolumbar spine disability. 3. The evidence associated with the claims file since the June 2003 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a cervical spine disability. 4. The evidence associated with the claims file since the June 2003 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for headaches, to include as secondary to a cervical spine disability. CONCLUSIONS OF LAW 1. Evidence received since the June 2003 rating decision is new and material, and reopening of the Veteran’s claim for entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.203, 20.1103. 2. Evidence in the constructive possession of VA since May 2003 is new and material, and reopening of the Veteran’s claim for entitlement to service connection a thoracolumbar spine disability is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(b), 20.203, 20.1103. 3. Evidence received since the June 2003 rating decision is new and material, and reopening of the Veteran’s claim for entitlement to service connection a thoracolumbar spine disability is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.203, 20.1103. 4. Evidence received since the June 2003 rating decision is new and material, and reopening of the Veteran’s claim for entitlement to service connection for headaches, to include as secondary to a cervical spine disability, is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.203, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A Board hearing was conducted via videoconference with the RO in Salt Lake City, Utah. A transcript of this hearing is contained within the electronic claims file. See October 4, 2019, Hearing Transcript (Tr.). New and Material Evidence VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 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). Regarding the newly submitted evidence, the United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117–18 (2010). Furthermore, the Court has held that evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In Turner, the Court noted that, with respect to VA treatment records, “something more than mere creation is required” to prove that VA constructively possessed the records. 29 Vet. App. at 217. In the context of 38 C.F.R. § 3.156(b), and dealing exclusively with VA treatment records, constructive receipt requires “knowledge by VA adjudicators at the [Veterans Benefits Administration] of the existence of those VA treatment records within the one-year appeal period.” Id. at 218. Of course, the question then becomes what knowledge is sufficient on the part of VA that such records exist. While the Court noted that the determination as to whether VBA had sufficient knowledge is a factual finding for the Board, it still offered guidance. On this point, the Court turned to 38 U.S.C. § 5103A(c)(1)(B), which outlines the Secretary’s obligation to assist the Veteran in obtaining relevant medical treatment records, and to 38 C.F.R. § 3.159(c), which outlines that the Veteran himself has the obligation to provide enough information to identify and locate existing records, such as the person, company, or agency holding the records; the approximate time frame covered by the records; and the condition for which treatment was provided. Id. at 218–19. Reopening under 38 C.F.R. § 3.156(a) 1. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for bilateral hearing loss is granted. The June 2003 final denial noted that the Veteran’s bilateral hearing loss claim was denied because there was no evidence that his hearing loss was incurred in, or related to, military service. At his hearing, the Veteran testified that, as a boatswain mate, he was exposed to loud noises “every day” via “helicopters.” Tr. at 3. This testimony previously was not considered by the AOJ. Thus, it is considered new. Furthermore, this testimony is material. It raises a reasonable possibility of substantiating the Veteran’s claim, as his claim previously was denied for failure to prove that his hearing loss was incurred in or related to service. As noted, the Veteran is not required to submit new and material evidence as to each unestablished element of his claim. See Shade, 24 Vet. App. at 121. Thus, this evidence is new and material, and reopening of the Veteran’s claim is warranted. See 38 C.F.R. § 3.156(a). 2. New and material evidence having been received, the appeals to reopen the claims for entitlement to service connection for a cervical spine disability and headaches are granted. The Court has held that a new etiological theory does not constitute a new claim. Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336–37 (Fed. Cir. 2008). In the instant claim, the Veteran specifically stated that he was seeking service connection for “severe headaches secondary to back injuries from the Navy.” See July 17, 2014, Application for Disability Compensation and Related Compensation Benefits. At the hearing, the Veteran testified that he hit his head on a steel crossbeam and fell down, rendering him unconscious for some period of time. See Tr. at 6. This testimony is both new and material. It previously was not considered by VA adjudicators and passes the low threshold of at least raising a reasonable possibility of substantiating the Veteran’s claim for both a cervical spine disability and for secondary service connection for headaches. Thus, reopening for these claims is warranted. See id.; Shade, 24 Vet. App. at 117–18; 38 C.F.R. § 3.156(a). Reopening under 38 C.F.R. § 3.156(b) 4. New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a thoracolumbar spine disability is granted. In February 2003, the Veteran filed to reopen this claim. In May 2003, the Veteran submitted a document titled “Medical History,” on which he indicated that he has received medical care from the Palo Alto VAMC in 1994. The corresponding June 2003 rating decision indicated that it reviewed VAMC records from that facility only as early as May 2003. In December 2019, the Veteran submitted the records from the Palo Alto VAMC. A December 1993 note states that the Veteran has minimal disc space narrowing L2–3; otherwise, unremarkable lumbar spine. Since May 2003, VA has been on notice that the earlier records from the Palo Alto VAMC existed. Thus, VA has been in constructive possession of these records since that time. See Turner, 29 Vet. App. at 218. Thus, the Board now must assess whether, pursuant to 38 C.F.R. § 3.156(b), these records constitute new and material evidence, as defined in subsection (a), see Voracek v. Nicholson, 421 F.3d 1299, 1304 (2005) (“[A]lthough the history behind § 3.156 is silent regarding whether the definition found in paragraph (a) applies to paragraph (b), it is logical the terms “new” and “material” have the same meaning throughout the entire section.”), to determine if the finality of the June 2003 rating decision stands with respect to this claim. See Turner, 29 Vet. App. at 219 (“The Court makes one final point regarding VA’s duties once VA has constructive receipt of VA treatment records. At that time, VA must determine whether the VA treatment records are new and material such that 38 C.F.R. § 3.156(b) applies and finality of the prior adjudication is vitiated. A determination that constructive receipt applies does not automatically mean that the claimant is granted benefits, only that VA must make a new and material evidence determination.”); see also Beraud v. McDonald, 766 F.3d 1402, 1406 (2014) (“As we made clear in Bond, the VA’s obligations under § 3.156(b) are not optional.”); Bond v. Shinseki, 659 F.3d 1362, 1368–69 (2011) (Requiring remand for VA to consider, thirteen years later, whether a February 1998 submission from a veteran during an appellate period properly was treated as an entirely new claim or whether that submission constituted new and material evidence so as to render his original claim pending, entitling him to an earlier effective date). The Board finds that these records are new and material. The earlier records previously were not considered and show that the Veteran has been receiving treatment for his thoracolumbar spine since December 1993—nearly ten years earlier than what VA previously thought and little over five years after separation from service. Thus, they make more plausible that the Veteran’s injuries could be related to service. As such, because VA has been in constructive possession of new and material evidence since May 2003, the Veteran’s claim for this condition is reopened and considered pending since his February 2003 application. See Turner, 29 Vet. App. at 218; 38 C.F.R. § 3.156(b). REASONS FOR REMAND 5. Entitlement to service connection for bilateral hearing loss is remanded. For VA purposes, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran’s DD-214 shows that he worked in helicopter operations and in firefighting team training. The Veteran also credibly has testified that he was exposed to loud noises every day via helicopters. Thus, the Board can concede that the Veteran would have been exposed to hazardous noise during service. Examining the record, however, the Veteran never has had a post-service examination for hearing loss. Because hearing loss requires certain pure tone threshold results, the Board cannot say, without examination, whether the Veteran has a current disability for VA compensation purposes. Therefore, on remand, the Veteran should be afforded an audiological examination. See 38 C.F.R. §§ 3.159(c)(4), 20.904(a). 6. Entitlement to service connection for tinnitus is remanded. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran has testified that he has experienced ringing in his ears since after bootcamp. Tr. at 3. Because the symptoms of tinnitus are capable of lay observation, the Veteran is competent to report its onset and severity. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As noted, the Board concedes in-service hazardous noise exposure. Thus, the McLendon elements have been satisfied, and VA must afford the Veteran an examination for his tinnitus. See 38 C.F.R. §§ 3.159(c)(4), 20.904(a). 7. Entitlement to service connection for a thoracolumbar spine disability and a cervical spine disability are remanded. VAMC records currently verify that the Veteran has received treatment for chronic pain in his thoracolumbar and cervical spine. As noted, the Veteran has testified that he injured his spine during service, and VAMC records from December 1993 note that the Veteran injured his back in 1987 while in service. As previously discussed, because the Veteran received treatment for his spinal conditions within five years after discharge from service, the issue of a correlation between in-service injury and current condition becomes more plausible. Thus, the Veteran also should be scheduled for an examination of his thoracolumbar and cervical spine. See 38 C.F.R. §§ 3.159(c)(4), 20.904(a). 8. Entitlement to service connection for headaches and an acquired psychiatric disorder, both to include as secondary to a cervical spine disability, are remanded. The Veteran has claimed that his headaches and psychiatric condition are secondary to his cervical spine condition. Because that claim is being remanded for further development, these claims also must be remanded as they inextricably are intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an audiological examination to assess the nature and etiology of any diagnosed hearing loss and/or tinnitus. The examiner shall answer the following: For any diagnosed hearing loss and/or tinnitus, is it at least as likely as not (a fifty percent probability or greater) that such diagnoses were occurred in or as a result of active duty service, to include noise exposure to helicopters? 3. Schedule the Veteran for an orthopedic examination to assess the nature and etiology of any diagnosed cervical or thoracolumbar spine disability. The examiner shall answer the following: For each diagnosed disability of the thoracolumbar and/or cervical spine, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s thoracolumbar and/or cervical spine condition occurred in, or is the result of, his period of active duty service, to include in-service injuries of hitting his head on a metal crossbar and/or falling? The examiner specifically should consider and respond to the VAMC records from Palo Alto dated December 1993 and the Veteran’s report of injuries in his May 2003 Statement in Support of Claim. Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Conduct any other development deemed necessary, to include providing the Veteran examinations for his claimed headaches and psychiatric condition. 5. Readjudicate the Veteran’s appeal. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.