Citation Nr: 21001144 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-34 699 DATE: January 7, 2021 ORDER Reopening of the issue of service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an effective date of service connection for traumatic brain injury (TBI) prior to April 27, 2017 is denied. Entitlement to an effective date of service connection for a scar, residual of TBI, prior to April 27, 2017 is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for TBI is remanded. Entitlement to an initial compensable rating for a scar, residual of TBI, is remanded. Entitlement to special monthly compensation based on housebound status or the need of regular aid and attendance is remanded. FINDINGS OF FACT 1. VA has received previously unconsidered evidence since a final August 2010 rating decision that denied service connection for tinnitus that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. 2. It is at least as likely as not the Veteran experienced tinnitus in service with recurrent symptoms ever since his separation from service. 3. An August 2010 rating decision denied service connection for resolved post-concussion syndrome without residuals, and VA did not receive a notice of disagreement or new and material evidence within one year of notice of the decision. 4. After the expiration of the appeal period for the August 2010 rating decision, VA first received an intent to file a new service connection claim for the residuals of TBI on April 27, 2017. CONCLUSIONS OF LAW 1. The criteria for reopening the issue of service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for an effective date of service connection for TBI prior to April 27, 2017 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date of service connection for a scar, residual of TBI, prior to April 27, 2017 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1961 to May 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran appeared at hearing before the undersigned in November 2020. A transcript of the hearing is of record. 1. Reopening of the issue of service connection for tinnitus is granted. An August 2010 rating decision denied the Veteran’s initial service connection claim for tinnitus. VA did not receive a notice of disagreement or new evidence regarding the claim within one year of notice of the August 2010 rating decision; therefore, the August 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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 Court of Appeals for Veterans Claims (Court) has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. During the November 2020 hearing before the undersigned, the Veteran testified he began to experience tinnitus approximately two to three years after his entry into active service and has experienced recurrent symptoms ever since his separation from service. The Veteran’s testimony regarding a continuity of symptomatology, or a similar statement, was not of record at the time of the August 2010 rating decision, even though, at the time of that decision, the Veteran had asserted he had ringing in his ears following an in-service automobile accident in 1963. Since the Veteran’s testimony regarding a continuity of symptomatology relates to the unestablished nexus element of his service connection claim, it is sufficient to reopen the claim. See Shade, 24 Vet. App. at 118-19. Thus, the Board finds reopening of the issue of service connection for tinnitus is warranted. 2. Entitlement to service connection for tinnitus is granted. Certain chronic diseases listed in 38 C.F.R. § 3.309(a) will be service connected on a presumptive basis if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is an organic disease of the nervous system and is therefore a chronic disease under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran’s lay reports are sufficient to establish the manifestation of tinnitus in service and continuously thereafter. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran’s reports credible. There is no evidence that conflicts with the Veteran’s lay reports. As a result, the Board finds it is at least as likely as not the Veteran experienced tinnitus in service with recurrent symptoms ever since his separation from service. The Board notes recurrent tinnitus is a compensable disability. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for tinnitus is warranted pursuant to the chronic disease presumption of 38 U.S.C. § 1112(a)(1). See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to an effective date of service connection for TBI prior to April 27, 2017 is denied. 4. Entitlement to an effective date of service connection for a scar, residual of TBI, prior to April 27, 2017 is denied. The Board notes the previously discussed August 2010 rating decision also denied service connection for “resolved post-concussion syndrome without residuals,” adjudicating a February 2010 informal claim submitted by the Veteran in which he reported suffering a concussion as a result of an in-service 1963 automobile accident and asserted having seizures as residual thereof. VA did not receive a notice of disagreement or new evidence regarding the denial of service connection for “resolved post-concussion syndrome without residuals” within one year of notice of the August 2010 rating decision; therefore, the August 2010 rating decision is also final with respect to service connection for the residuals of the head injury sustained in the in-service 1963 automobile accident. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. The Board finds the Veteran’s April 2017 claim for the residuals of TBI constitutes a request to reopen the previously denied claim because it is clearly based on the same factual predicate and symptoms as the February 2010 claim that was finally adjudicated by the August 2010 rating decision. See Murphy v. Wilkie, No. 2019-2064 (Fed. Cir. Dec. 21, 2020). An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). Here, there is no indication new and material evidence resulted from receipt of additional relevant service department records or that CUE was committed in the August 2010 rating decision. To the contrary, the medical opinion that led to the grant of service connection for the residuals of TBI was not received until July 2017. The Board notes a finding of CUE must be based solely on the evidence that was of record at the time the prior decision was made; therefore, the July 2017 opinion cannot be considered in a CUE analysis in the context of this appeal. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Veteran has not raised the issue of CUE with respect to the August 2010 rating decision, which denied service connection for “resolved post-concussion syndrome without residuals” based on a lack of a current disability, a finding that was clearly supported at the time of the August 2010 rating decision by an August 2010 VA examination report. The record establishes the Veteran’s service treatment records were of record at the time of the August 2010 rating decision and were considered by the August 2010 VA examiner who provided the opinion regarding the lack of a current disability; therefore, the July 2017 opinion that led to grant of service connection for the residuals of TBI was not based on previously unconsidered service records and simply constitutes a difference in opinion when compared with the August 2010 VA examination report. The Board notes neither the Veteran’s February 2010 informal claim or subsequent April 2017 formal claim raised the issue of scarring as a result of his in-service 1963 automobile accident; therefore, the Board finds an earlier effective date of service connection for this disability is also not warranted as the AOJ appears to have granted service connection for a residual scar based solely on the Veteran’s July 2017 VA examination report, in accordance with the paternalistic nature of the VA adjudication system, even though the issue was not raised by the Veteran. Ultimately, the Board finds the AOJ has correctly assigned an effective date of April 27, 2017 for service connection for the residuals of TBI, to include a residual scar, based on the Veteran’s request to reopen the his initial February 2010 claim for injuries resulting from an in-service 1963 automobile accident, which was initially adjudicated by the final August 2010 rating decision; therefore, his appeal of the effective date of service connection for the residuals of TBI, to include a residual scar, is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for TBI is remanded. As noted by the Veteran’s representative during the November 2020 hearing before the undersigned, the July 2017 TBI examination report is internally inconsistent to the extent that it initially notes the Veteran has “no complaints of impairment of memory, attention, concentration, or executive function” but then subsequently references issues with short-term memory and other cognitive impairment upon testing conducted in conjunction with the examination. The Board is simply unable to reconcile these inconsistent statements without further explanation from the examiner. Additionally, during the November 2020 hearing, the Veteran provided testimony regarding his memory issues and asserted that his functional impairment may have declined since his previous examination in July 2017. Thus, a new examination is necessary to ensure the decision on the Veteran’s appeal of the initial rating assigned for TBI is fully informed. 2. Entitlement to an initial compensable rating for a scar, residual of TBI, is remanded. The Board notes the Veteran has not been scheduled for a scar examination; therefore, the record is inadequate to make a fully informed decision on his appeal of the initial rating assigned for his service-connected scar. 3. Entitlement to special monthly compensation based on housebound status or the need of regular aid and attendance is remanded. The issue of entitlement to special monthly compensation based on housebound status or the need of regular aid and attendance is inextricably intertwined with the other issues being remanded for further development to the extent that the schedular ratings for the Veteran’s service-connected disabilities must be adjudicated prior to a decision on entitlement to special monthly compensation at the housebound rate on a statutory basis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further, the additional evidence that will be developed on remand is highly relevant to the factual determination of whether the Veteran is housebound or requires regular aid and attendance. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination to assess the severity of the functional impairment resulting from his service-connected TBI. If the examiner determines the Veteran has no complaints of impairment of memory, attention, concentration, or executive function, the examiner must reconcile this finding with the Veteran’s lay statements regarding memory problems, as well as the issues with short-term memory and other cognitive impairment shown on testing conducted in conjunction with his July 2017 TBI examination. 2. Schedule the Veteran for a scar examination to properly assess the functional impairment resulting from his service-connected scar, residual of TBI. 3. Readjudicate the issues on appeal, to include the issue of entitlement to special monthly compensation based on housebound status or the need of regular aid and attendance. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.