Citation Nr: 20038097 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 18-08 468 DATE: June 3, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral tinnitus is reopened. Service connection for bilateral tinnitus is denied. REMANDED Entitlement to service connection for bilateral loss of vision is remanded. FINDINGS OF FACT 1. In a January 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral tinnitus; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received during the appeal period. 2. Additional evidence received since the January 2003 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral tinnitus, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has not been diagnosed with bilateral tinnitus at any point during the appeal period. CONCLUSIONS OF LAW 1. The January 2003 rating decision denying the claim of entitlement to service connection for bilateral tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the January 2003 claim of entitlement to service connection for bilateral tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1981 to February 1985 and from July 1989 to July 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this matter in September 2018 when it remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. It has now returned to the Board for appellate review. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral tinnitus As background, in November 2002, the Veteran filed a claim for service connection for bilateral tinnitus. In a January 2003 rating decision, the RO denied the claim. Part of the rationale for the January 2003 denial was that the evidence of record, to include the service medical records, failed to show any complaints, treatment, or diagnosis of tinnitus. The January 2003 rating decision became final when the Veteran did not appeal that decision and VA did not actually or constructively receive new and material evidence during the one-year period. Thereafter, in September 2016, the Veteran submitted a new claim for service connection for bilateral tinnitus and underwent a VA examination for hearing loss and tinnitus in January 2017. 01/13/2017 C&P Exam. At the January 2017 examination, the Veteran did not report bilateral tinnitus and the VA examiner did not provide a diagnosis of bilateral tinnitus. In a May 2017 rating decision, the RO concluded that new and material evidence had been submitted to warrant readjudication of the Veteran’s claim and continued and confirmed the January 2003 denial of service connection for bilateral tinnitus. Notwithstanding the May 2017 rating decision, the issue of whether new and material evidence has been presented must be determined by the Board de novo, as the matter is a jurisdictional issue that the Board must address. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Board finds that the Veteran’s January 2017 VA examination report constitutes new and material evidence because it was not previously part of the record before agency adjudicators and it relates to an unestablished fact necessary to substantiate the claim – evidence of a diagnosis of tinnitus. 38 C.F.R. § 3.156(a). Therefore, the Board finds that readjudication of the claim of service connection for bilateral tinnitus is warranted. 2. Entitlement to service connection for bilateral tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that ringing in the ears is capable of lay observation ) The Board finds that entitlement to service connection for bilateral tinnitus is not warranted here. After a careful review of the competent lay and medical evidence of record, the Board finds no evidence of diagnosis, treatment, or symptoms of tinnitus. Notably, the Veteran denied tinnitus in March 2014, June 2014, October 2014, August 2015, August 2016, and August 2017. See 07/29/2019 CAPRI. Further, at the January 2017 VA examination, the Veteran again denied experiencing symptoms of tinnitus. See 01/13/2017 C&P Exam. The Board acknowledges that the record contains the Veteran’s November 2002 and September 2016 claims for service connection for bilateral tinnitus. See 11/01/2002 VA 21-526, Veteran’s Application for Compensation or Pension; 09/29/2016 VA 21-526EZ, Fully Developed Claim. However, the Veteran has never reported symptoms of tinnitus at any point during service or after separation, and the record is similarly silent for a diagnosis of bilateral tinnitus. Accordingly, the claim for entitlement to service connection must be denied. In reaching this decision, the Board has considered the benefit of the doubt doctrine but has determined that is inapplicable as the preponderance of the evidence weighs against the claim. REASONS FOR REMAND Entitlement to service connection for loss of vision is remanded The Veteran seeks entitlement to service connection for bilateral vision loss. Pursuant to the September 2018 remand, the RO obtained and associated with the claims file additional outstanding VA treatment records from September 2015 to the present. However, the September 2018 remand also instructed the RO to schedule the Veteran for a VA eye examination if the newly obtained treatment records revealed a diagnosis of a disability manifested by vision loss. See 09/05/2018 BVA Decision at 7. VAMC San Juan treatment records obtained and associated with the claims file pursuant to the September 2018 remand show a February 2017 diagnosis of right and left eye refractive error, hyperopia, astigmatism, presbyopia, and incipient lens opacity. 07/29/2019 CAPRI at 31. Despite this evidence of a disability manifested by vision loss, the RO failed to schedule the Veteran for a VA eye examination as directed by the September 2018 remand. The Board thus finds that there has not been substantial compliance with the September 2018 remand. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the RO failed to comply with the Board’s instructions to schedule the Veteran for a VA eye examination to assess his disability manifested by vision loss. Compliance with a remand is not discretionary, and failure to comply with remand directives triggers a remand for corrective action. Although the additional delay is regrettable, the Board finds that a remand is necessary to ensure there is a complete record upon which to decide the Veteran’s claim. The Board further finds that a records-based examination is warranted to address the Veteran’s claim to the extent that this may be accomplished without an in-person examination due to the current public health emergency in the United States.   The matter is REMANDED for the following action: Schedule a records-based VA medical opinion to assess the nature and etiology of the Veteran’s disability manifested by vision loss, to include right and left eye refractive error, hyperopia, astigmatism, presbyopia, and incipient lens opacity. See 07/29/2019 CAPRI at 31. The examiner must opine whether the Veteran’s disability manifested by vision loss is at least as likely as not (50 percent probability or higher) related to an in-service injury, event, or disease. The examiner is specifically to address whether the Veteran’s vision loss is a congenital or developmental defect, or if it was caused or aggravated by military service. If the clinician needs to see the Veteran for a physical examination to assess and answer the above question, then contact the Veteran and schedule him for an examination. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If an in-person examination is required to answer the above, then the Veteran should be so scheduled. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered.   If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont, Law Clerk 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.