Citation Nr: 21004231 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-14 741 DATE: January 26, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected right ankle arthritis, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REFERRED The issues of service connection for posttraumatic stress disorder (PTSD) and service connection for a psychiatric disorder as secondary to service-connected right ankle arthritis were raised in September 2013 and April 2018 statements and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT 1. In a January 2012 rating decision, a Department of Veterans Affairs (VA) regional office (RO) denied a claim of entitlement to service connection for hypertension on the basis that there was no medical nexus evidence. The Veteran was notified of that decision but did not appeal that decision. 2. The medical evidence received in the one-year period after notice of the January 2012 rating decision when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim of service connection for hypertension. 3. A September 2020 VA examination report showing that a history of hypertension beginning in 1984 when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for hypertension, to include as secondary to service-connected right ankle arthritis. 4. The evidence is in equipoise as to whether the tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The January 2012 rating decision, which denied the Veteran’s claim of entitlement to service connection for hypertension, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2020); 38 C.F.R. § 3.156 (2012). 2. The evidence received since the January 2012 rating decision is new and material, and the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1981 to June 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2012 (denial of service connection for hearing loss and tinnitus) and September 2013 (denial of reopening of service connection for hypertension) rating decisions of a VA RO. In March 2017, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In February 2018 and February 2020, the Board remanded the claims for further development. In an unappealed January 2012 rating decision, a RO denied a claim of entitlement to service connection for hypertension. In a September 2013 rating decision, a RO denied the reopening of a claim of entitlement to hypertension. The Veteran filed a timely notice of disagreement. In a November 2013 rating decision, a RO reopened the claim and denied it on the merits. The Board must consider whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened; and there is no harm to a veteran’s ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In a February 2020 statement, the Veteran asserted that his hypertension was aggravated by his now-service-connected right ankle disability. A new etiological theory for service connection does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). New and material evidence is still required to reopen the previously denied claim of entitlement to service connection for hypertension. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of service connection for hypertension Governing law and regulations Under 38 C.F.R. § 3.156 (b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of a RO decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Under the law in effect at the time of the January 2012 rating decision, new evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). Analysis In a January 2012 rating decision, a VA RO denied a claim of entitlement to service connection for hypertension on the basis that there was no medical nexus evidence. The Veteran was notified of that decision but did not appeal that decision. Within the one-year appeal period, a RO received duplicate copies of private treatment records. The private treatment records do not pertain to any treatment of hypertension and were previously considered by the RO in the January 2012 rating decision. Thus, the evidence received within the one-year appeal period, when considered by itself or in connection with evidence previously assembled, did not relate to unestablished facts necessary to substantiate the claim, and did not raise a reasonable possibility of substantiating the claim of service connection for hypertension. In short, the January 2012 rating decision is final as to the denial of service connection for hypertension. As noted above in the findings of fact and conclusions of law, the Board is reopening the claim of entitlement to service connection for hypertension. Service Connection 2. Entitlement to service connection for tinnitus Governing law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, such as organic diseases of the nervous system that include tinnitus when there is evidence of acoustic trauma, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Analysis Regarding current disability, December 2011 and September 2020 VA examination reports reveal a diagnosis of tinnitus. Thus, Hickson element (1) is established. In his September 2012 notice of disagreement, the Veteran reported noise exposure from being a combat engineer. His DD Form 214 from his period of service shows that he was a combat engineer. Therefore, the Board finds that the Veteran had in-service noise exposure from being a combat engineer, as he asserted. In an August 2010 statement, the Veteran reported that he has had ringing in his ears since 1984, which was shortly after service. The August 2014 VA examiner noted that the date of onset for tinnitus was in 2011. The examiner noted that the Veteran reported that he had had motor vehicle accidents in 1982 and 1996 during which he lost consciousness and that he had had tinnitus since 1996 motor vehicle accident. In an August 2012 statement, the Veteran reported that he has had ringing in his ears since service and that his symptoms have gotten worse since service. At a March 2017 hearing, the Veteran testified that he first noticed ringing in his ears after being hit by a car in service and suffering a head injury. Hearing transcript, page 5. At the September 2020 examination, the Veteran reported that he noticed tinnitus started during basic training but that he did not report tinnitus to a medical provider because he did not think the symptom was significant at the time given his age. The Veteran essentially asserted that the August 2014 examiner misunderstood his reporting of symptomatology. The Veteran has alleged that he had ringing in his ears in service and has had this symptom thereafter. The Board finds he is competent to report and that he is credible because he reported in 2010, prior to the VA examination, that the ringing in the ears began in 1984, which was shortly after service and well before the 1996 motor vehicle accident resulting in a head injury. The Veteran has explained why he did not previously think ringing in his ears was significant and how his symptom has worsened with time. Lay assertions of symptomatology or injury may suffice where the determinative issue is not medical in nature. Falzone v. Brown, 8 Vet. App. 398, 406 (1995). The December 2011 VA examiner opined that it is less likely than not that the tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran’s hearing was normal on separation and that the tinnitus was first reported to have started in 1996, more than 14 years after active service. The examiner added that the Institute of Medicine’s report, Noise and Military Service: Implications for Hearing Loss and Tinnitus, states that “[t]he committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” The examiner’s opinion is predicated on part that tinnitus began in 1996. The Board, however, has found that the Veteran is credible in his reporting of ringing of the ears beginning in service. The September 2020 VA examiner opined that it is less likely than not that the tinnitus was caused by or a result of military noise exposure. The examiner based the opinion on a review of the medical records, the current examination, no service treatment records showing complaints of tinnitus in service, and professional expertise. The examiner’s opinion is predicated on part that there is no evidence in the service treatment records of a complaint of tinnitus. The Board, however, has found that the Veteran is credible in his reporting of ringing of the ears beginning in service. While the VA examiners provided bases for thee opinion, the Board gives great weight to the Veteran’s lay assertions of symptomatology. Thus, the evidence is in equipoise as to whether the Veteran’s tinnitus had its onset during active duty. Service connection for tinnitus is warranted under the chronicity provision of 38 C.F.R. § 3.303(b). 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). The benefit sought on appeal is accordingly allowed. REASONS FOR REMAND A May 2020 inquiry to the Social Security Administration reflects that the Veteran had at least applied for Social Security disability benefits. The RO should obtain any records pertaining that claim. The RO should attempt again to obtain any treatment records from the Martin Luther King, Jr/Charles R. Drew Medical Center, the Venice Family Clinic, the Watts Health Foundation, and West Century Medical Center. Given that the Veteran is claiming that his hypertension is due to the stress of the in-service motor vehicle accident and secondary to taking medications for his service-connected right ankle disability, an addendum to the September 2020 medical opinion is necessary. As the Veteran is claiming secondary service connection for his hypertension, the Veteran must be provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a secondary basis, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. 38 U.S.C. §§ 5103, 5103A (2012). The matters are REMANDED for the following action: 1. The AOJ should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of secondary service connection, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. 2. Ask the Veteran to identify all treatment for his hearing loss, hypertension, and right ankle disability, and obtain any identified records. Ask the Veteran to complete a VA Form 21-4142 for the Martin Luther King, Jr/Charles R. Drew Medical Center, the Venice Family Clinic, the Watts Health Foundation, and West Century Medical Center for all records. Make two requests for the authorized records from the Martin Luther King, Jr/Charles R. Drew Medical Center, the Venice Family Clinic, the Watts Health Foundation, and West Century Medical Center, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s federal records from the Social Security Administration pertaining to the Veteran’s claim for disability benefits. Document all requests for information as well as all responses in the claims file. 4. After the development in 1 and 3 is completed, the RO should arrange for the Veteran’s electronic claims file to be reviewed by the VA examiner who prepared the September 2020 VA medical opinion for the preparation of an addendum regarding the nature of hypertension. If that examiner is unavailable, arrange for the claims file to be reviewed by another medical professional. The Veteran should only be scheduled for another examination if the new medical professional deems it necessary. The clinician must opine whether it is at least as likely as not that hypertension is related to an in-service injury, event, or disease, including stress from the in-service motor vehicle accident. The clinician must opine on whether it is at least as likely as not that hypertension was (1) caused by or (2) aggravated by right ankle arthritis, to include pain from the arthritis and from taking medications for the arthritis. If the clinician finds that hypertension was aggravated by right ankle arthritis, to include pain from the arthritis and from taking medications for the arthritis, then the clinician should quantify the degree of aggravation. 5. After the development in 1 through 3 is completed, the RO should undertake any necessary development on the claim for service connection for bilateral hearing loss as warranted by any additional evidence of record. 6. After development above has been completed, the RO should readjudicate the Veteran’s claims with consideration of all evidence of record. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.