Citation Nr: 20009775 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 15-41 668 DATE: February 5, 2020 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a hypertension disability is reopened. Entitlement to service connection for a tinnitus disability is denied. REMANDED Entitlement to service connection for a hypertension disability is remanded for additional development. Entitlement to service connection for a low back disability is remanded for additional development. Entitlement to service connection for a left ankle disability is remanded for additional development. Entitlement to service connection for a left knee disability is remanded for additional development. Entitlement to service connection for a bilateral eye disability is remanded for additional development. Entitlement to service connection for a hemorrhoids disability is remanded for additional development. Entitlement to service connection for a scar disability is remanded for additional development. Entitlement to service connection for a skin disability is remanded for additional development. Entitlement to service connection for a post-traumatic stress disorder (PTSD) disability is remanded for additional development. REFERRED ISSUE In November 2015, the Veteran raised the issue of whether there was clear and unmistakable error (CUE) in the September 2010 denial of his claim for entitlement to service connection for a traumatic brain injury disability with dementia. See November 2015 VA Form 9. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. Accordingly, this issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for a hypertension disability was denied in a September 2010 rating decision; the Veteran did not file a Notice of Disagreement or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the September 2010 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim of service connection for a hypertension disability. 3. The preponderance of the evidence reflects that the Veteran does not have tinnitus. CONCLUSIONS OF LAW 1. The September 2010 rating decision denying service connection for a hypertension disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The criteria for reopening the claim of service connection for a hypertension disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the U.S. Army from November 1965 to August 1967, and from July 1968 to March 1987. During this time, he was awarded the Republic of Vietnam Gallantry Cross, the Vietnam Campaign Medal, the Vietnam Service Medal, the Meritorious Service Medal, the Army of Occupation Medal, and the National Defense Service Medal, among other awards. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) regional offices (RO) in Waco, Texas. Procedurally, the Board notes that in addition to the claims currently before the Board, the Veteran had also perfected an appeal for the denial of his claim for entitlement to service connection for a right ring finger disability. A subsequent rating decision issued by the RO granted the Veteran service connection for residuals of a right ring finger fracture and assigned a noncompensable evaluation effective December 9, 2011, the date of receipt of the Veteran’s service connection claim. See March 2019 Rating Decision. The establishment of service connection for residuals of a right ring finger fracture represents a full grant of the benefit sought on appeal; therefore, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board observes that in November 2015, the Veteran suggested that there was clear and unmistakable error (CUE) in the September 2010 denial of his claim for entitlement to service connection for a traumatic brain injury disability with dementia. See November 2015 VA Form 9. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C.A. § 5101. Effective March 24, 2015, a change in the regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1 (p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a). Should the Veteran wish to pursue a claim for revision of the prior denial of service connection for a traumatic brain injury disability with dementia, he is invited to submit a claim on the proper form prescribed by the Secretary. Claim to Reopen The Veteran’s claim for entitlement to service connection for a hypertension disability was initially denied in a September 2010 rating decision, as the RO determined that the evidence did not show that the Veteran had a current diagnosis of hypertension or a record of taking blood pressure medication based on review of the most recent treatment records available at the time. The record reflects that the Veteran neither timely filed a Notice of Disagreement in response to the September 2010 decision, nor submitted new evidence during the 1-year period following the issuance of this decision. Accordingly, the September 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). The Veteran subsequently filed to reopen his claim for entitlement to service connection for a hypertension disability in December 2011 and notified the RO of new VA treatment records associated with his claim. Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the new treatment records generated after the issuance of the September 2010 rating decision to constitute “new” evidence, as they were not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as there is a suggestion that there may be a connection between the Veteran’s claimed hypertension and his active service. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a hypertension disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Entitlement to service connection for a tinnitus disability The Veteran has asserted that his tinnitus is related to active service; specifically, he maintains that this disability is the result of exposure to weapons fire during his active service. See December 2011 Statement in Support of Claim (VA Form 21-4138). A review of the Veteran’s service treatment records, including his enlistment, retirement, and other examinations while in service, are otherwise silent for any complaints, treatment, or diagnosis related to tinnitus. A review of the Veteran’s post-service treatment records does not reflect any manifestations of or treatment for tinnitus. Further, a review of the record reflects that the Veteran previously underwent two VA audio examinations, in March 2009 and in August 2010. See, e.g., March 2009 VA Audio Compensation and Pension Examination; August 2010 VA Audio Compensation and Pension Examination. During his March 2009 examination, the examiner documented that the Veteran “denied having tinnitus or any head noises;” during his August 2010 examination, the examiner noted that there was no current complaint of tinnitus. These findings strongly suggest that the Veteran does not have a current tinnitus disability. To reiterate, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich, 104 F. 3d at 1332. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. Regarding lay evidence, at the Veteran’s October 2019 Board hearing, the Veteran’s wife reported that the Veteran had previously told her that he had a “rumbling in his ears,” since she had known him, but that he did not tell her when it began. See October 2019 Board Hearing Transcript. However, the Board notes that the Veteran’s wife’s report of his description of tinnitus symptoms is contradicted by his earlier assertions to VA examiners on two occasions that he did not have tinnitus. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (noting that the Board assigning slight probative value to statements because of a significant time delay between the affiants’ observations of the claimant’s behavior and the date on which the statements were written is completely within the Board’s discretion to weigh the evidence); Harvey v. Brown, 6 Vet. App. 390-394 (1994) (holding that Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). As such, the Board assigns less probative weight to the Veteran’s wife’s assertion that he has tinnitus that is related to his active service. The most probative evidence of record are the findings of the VA examiner that Veteran himself reported on two occasions that he did not have tinnitus or noise in the head. The weight of the evidence does not show that the Veteran currently has tinnitus. Thus, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for tinnitus, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, the claim for service connection for a tinnitus disability is denied. REASONS FOR REMAND Entitlement to service connection for: a hypertension disability; a low back disability; left ankle disability; a left knee disability; a bilateral eye disability; a hemorrhoids disability; a scar disability; a skin disability; and a post-traumatic stress disorder (PTSD) disability are remanded. The Veteran has asserted that he has hypertension, low back, left ankle, left knee, bilateral eyes, hemorrhoids, scar, skin, and post-traumatic stress disorder (PTSD) disabilities that are related to his active service. In conjunction with these claims, the RO scheduled the Veteran for multiple VA examinations in July 2012. However, the Veteran was unable to attend the examinations due to his dementia, from which he currently suffers, and all the VA examinations were cancelled except for the Veteran’s VA PTSD examination, which his wife attended. See July 2012 VA Post-Traumatic Stress Disorder Disability Benefits Questionnaire (DBQ). While the examiner diagnosed the Veteran with dementia, she noted that “the Veteran was not present for the evaluation and it cannot be determined whether he meets the criteria for PTSD.” The RO then subsequently denied the Veteran’s claims for entitlement to service connection for all nine claims on the grounds that the Veteran missed his VA examinations and no medical nexus between the Veteran’s claimed conditions and his military service was shown based on a review of the evidence of record. However, a review of the Veteran’s service treatment records reflects numerous notations relating to his claimed conditions during his active service, including: multiple notations regarding blood pressure symptoms; low back strain symptoms; diagnoses of a sprained left ankle and knee; vision symptoms; a hemorrhoids diagnosis; surgery on the back of the Veteran’s head, and skin symptoms. Likewise, a review of the Veteran’s post-service treatment records, as well as extensive lay statements submitted by the Veteran’s wife in support of the Veteran’s claims, leads the Board to find that medical opinions are warranted to address the nature and etiology of the Veteran’s claimed hypertension; low back; left ankle; left knee; bilateral eye; hemorrhoids; scar; skin; and post-traumatic stress disorder (PTSD) disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). The matters are REMANDED for the following action: 1. Obtain any additional outstanding VA treatment records for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After any available records are associated with the claims file, obtain new medical opinions addressing the nature and etiology of the Veteran’s claimed 1) hypertension; 2) low back; 3) left ankle; 4) left knee; 5) bilateral eye; 6) hemorrhoids; 7) scar; 8) skin; and 9) post-traumatic stress disorder (PTSD) disabilities. Access to the electronic claims file, including a copy of this remand, must be made available for the examiner to review. The medical opinions must include a notation that this record review took place. The VA examiner must provide a clear explanation for the opinions, to include any comment on any credibility issues raised by the record from a medical perspective. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a.) With respect to the Veteran’s hypertension disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (b.) With respect to the Veteran’s low back disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (c.) With respect to the Veteran’s left ankle disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (d.) With respect to the Veteran’s left knee disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (e.) With respect to the Veteran’s bilateral eye disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (f.) With respect to the Veteran’s hemorrhoids disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (g.) With respect to the Veteran’s scar disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (h.) With respect to the Veteran’s skin disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? (i.) With respect to the Veteran’s post-traumatic stress disorder (PTSD) disability, the examiner is asked to address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, 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.