Citation Nr: 21063731 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-46 386 DATE: October 15, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a low back disability with radiculopathy is reopened. New and material evidence having been received, the claim for entitlement to service connection for a cervical spine disability with radiculopathy is reopened. New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened. Entitlement to service connection for degenerative arthritis and disc disease of the thoracolumbar spine arthritis with radiculopathy is granted. Entitlement to service connection for degenerative arthritis and disc disease of the cervical spine with radiculopathy is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A November 2013 rating decision denied service connection for cervical degenerative disc disease with radiculopathy, thoracolumbar degenerative joint disease with radiculopathy, and tinnitus. The Veteran was notified of this decision and of his appellate rights by letter dated November 20, 2013. 2. The Veteran did not submit a notice of disagreement within one year of the mailing of notice of the November 2013 rating decision, and no new and material evidence was obtained or received by VA within this one-year time period. 3. The Veteran's degenerative arthritis and disc disease of the thoracolumbar spine with radiculopathy had its onset during active service. 4. The Veteran's degenerative arthritis and disc disease of the cervical spine with radiculopathy had its onset during active service. 5. The Veteran's tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The November 2013 rating decision is final with regard to the claims for service connection for cervical degenerative disc disease with radiculopathy, thoracolumbar degenerative joint disease with radiculopathy, and tinnitus. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claims for service connection for cervical degenerative disc disease with radiculopathy, thoracolumbar degenerative joint disease with radiculopathy, and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for degenerative arthritis and disc disease of the thoracolumbar spine with radiculopathy are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 4. The criteria for service connection for degenerative arthritis and disc disease of the cervical spine with radiculopathy are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 13, 1979, to September 26, 1980, from January 10, 2005, to May 27, 2005, from May 7, 2007, to September 30, 2007, from January 7, 2008, to June 18, 2008, from November 30, 2008, to March 30, 2009, from April 20, 2009, to January 9, 2010, and from February 19, 2010, to December 30, 2010, with additional periods of unverified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision. The Veteran requested a video-conference hearing regarding his claims for service connection. See October 2018 VA Form 9, Appeal to the Board of Veterans' Appeals. Later, the Veteran confirmed that he would attend his scheduled hearing and that the hearing would be virtual. See VA Form 27-0820, Report of General Information. In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual tele-hearing. A transcript of that hearing is of record. Although it appears the Agency of Original Jurisdiction (AOJ) has reopened the Veteran's claims for service connection as it has addressed the claims on the merits, the Board must determine of its own accord whether new and material evidence is of record to reopen the claim before it may consider it on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Of note, in April 2017, the Veteran submitted a "request for reconsideration" of the April 2016 rating decision that denied the Veteran's claims for service connection. It appears that the June 2017 rating decision treated the Veteran's "request for reconsideration" as a claim to reopen his claims for service connection. In the June 2017 rating decision, the AOJ found that because the claim had been submitted within one year of an April 2016 rating decision that denied the Veteran's claims for service connection, the claims were reopened, and denied on the merits. Regarding the Veteran's claims for service connection, reopening is not necessary based on the April 2016 rating decision becoming final as the Veteran submitted new and material evidence with his "request for reconsideration" thus preventing that decision from becoming final. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a decision from the Agency of Original Jurisdiction prevents that decision from becoming final). As noted above, the June 2017 rating decision denied the Veteran's claims for service connection. A January 2018 rating decision also denied the Veteran's claims for service connection. The Veteran submitted a notice of disagreement (NOD) in January 2018. The Veteran's January 2018 NOD was submitted within one year of the June 2017 rating decision, and thus is timely with respect to that decision (38 C.F.R. § 20.302. Therefore, the Board will treat it as applying to that earlier decision, even though it was apparently filed in response to the January 2018 rating decision. To do otherwise in this situation, that is, to characterize the June 2017 rating decision as final regarding the Veteran's claims for service connection, would be to over focus on a technicality to the point of absurdity, and would contravene the pro-claimant nature of VA's claims adjudication system. 1. New and material evidence having been received, the claim for entitlement to service connection for a low back disability with radiculopathy, is reopened. 2. New and material evidence having been received, the claim for entitlement to service connection for a cervical spine disability with radiculopathy, is reopened. 3. New and material evidence having been received, the claim for entitlement to service connection for tinnitus, is reopened. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no NOD is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 19.52. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 19.52, 20.200, 20.201 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to warrant reopening, the new evidence must neither be 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); see Shade, 24 Vet. App. at 117 (holding that there is a "low threshold" for reopening). To determine whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of a decision from the Agency of Original Jurisdiction, it prevents that decision from becoming final and 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); Young, 22 Vet. App. at 466; 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). In determining whether new and material evidence is required to reopen the claim, the focus must be on whether the evidence amounts to a new claim "based upon distinctly diagnosed diseases or injuries" from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008) (holding that claims based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims, even if they involve the same symptomatology). A new diagnosis does not necessarily amount to a new claim if the evidence shows that the same disease or injury was in fact adjudicated in the prior decision. See Velez, 23 Vet. App. at 204; see also Boggs, 520 F.3d at 1336 (a misdiagnosis cannot be the basis for a new claim). The Veteran's claims for service connection were originally denied in a November 2013 rating decision. The Veteran was notified of this decision and of his appellate rights by letter dated November 20, 2013. The Veteran did not appeal. See 38 C.F.R. §§ 19.52, 20.200, 20.201. Further, no new and material evidence was received within one year of the date of mailing of the rating decision. See 38 C.F.R. § 3.156(b). Accordingly, the November 2013 rating decision is final with regard to these claims. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a petition to reopen his claims for service connection that was received by VA in February 2013. The Veteran's claims folder now contains an April 2017 lay statement from the Veteran advising that onset of arthritic symptoms presented during his active service as a result of required vaccines, heavy lifting, bending, carrying construction materials, and physical fitness training. Additionally, the Veteran included an article from the National Vaccine Information Center entitled "Biological Warfare and Anthrax Vaccine Special Report Diseases and Vaccines NVIC" states that some antibiotics can cause central nervous system problems. This evidence was not of record at the time of the November 2013 rating decision, and relates to an unestablished fact necessary to support the claims, namely a "medical nexus" between the current disabilities and the disease or injury incurred or aggravated during service. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Therefore, the claims are reopened. Service Connection Under VA law, service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection will also be presumed for certain chronic diseases, including arthritis and tinnitus as an organic disease of the nervous system, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. See also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2012) (observing that a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system, tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). 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. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 4. Entitlement to service connection for a low back disability with radiculopathy is granted. Here, the Veteran is currently diagnosed as having degenerative arthritis of his thoracolumbar spine. See August 2018 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Post service, diagnostic imaging from August 2011 demonstrated mild degenerative spurring and disc space narrowing primarily at L1-2 and possible L3-4 without posterior spurring of central canal stenosis and mild facet arthritis lower lumbosacral area without spondylolisthesis. The Veteran was initially shown to have degenerative changes of his thoracolumbar spine in August 2011, approximately eight months following his separation from service. Therefore, this finding demonstrates that the Veteran's arthritis of his thoracolumbar spine manifested to a compensable degree within one year after his discharge from service. See 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Code 5003. Post-service treatment records dated in September 2012 contain a diagnosis of lumbar radiculopathy. Accordingly, service connection is warranted for degenerative arthritis and disc disease of the thoracolumbar spine with radiculopathy. 5. Entitlement to service connection a cervical spine disability with radiculopathy is granted. Here, the Veteran is currently diagnosed as having degenerative arthritis of his cervical spine. See August 2018 VA Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Post service, diagnostic imaging from August 2011 showed degenerative disc disease at C5-6 without central canal stenosis; facet arthritis predominant on the left C3 through C6 associated with moderate posterior spur encroachment C4-5 on the left and C5-6 level associated with uncinate spurring of moderate left neural foraminal compromise; and moderate compromise right neural foramina of uncinate spurring C5-6. The Veteran was initially shown to have degenerative changes of his cervical spine in August 2011, approximately eight months following his separation from service. Therefore, this finding demonstrates that the Veteran's arthritis of his cervical spine manifested to a compensable degree within one year after his discharge from service. See 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Code 5003. Post-service treatment records dated in September 2012 contain a diagnosis of cervical radiculopathy. Accordingly, service connection is warranted for degenerative arthritis and disc disease of the cervical spine with radiculopathy. 6. Entitlement to service connection for tinnitus is granted. The Veteran maintains that he has tinnitus as a result noise exposure that occurred during his active service while working as a structural craftsman. In particular, the Veteran stated that during his active service, he was exposed to hammering and excessive noise in the sheet metal shop while fabricating and installing heating and air conditioning duct work. For the reasons discussed below, the Board finds that service connection for tinnitus is warranted. Concerning whether the Veteran has a current disability, he has reported experiencing tinnitus since his active service. See December 2021 Hearing Transcript. Further, the February 2013 Audiology Compensation and Pension Examination Report indicates that the Veteran reported having constant mild tinnitus that has been progressive for the past few years. The Veteran is competent to report experiencing an in-service injury and resultant auditory pathology in the form of tinnitus. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds the Veteran's statements concerning his in-service noise exposure and resultant in-service auditory symptomatology to be credible. Furthermore, the Veteran maintains that he experienced tinnitus since his in-service noise exposure. The Veteran is competent to report experiencing auditory symptomatology since his active service, as a symptom such tinnitus is certainly conditions with "unique and readily identifiable features" that are "capable of lay observation." Jandreau, 492 F. 3d at 1376-77; Davidson, 581 F.3d 1313; Layno v. Brown, 6 Vet. App. 465, 470 (1994); Charles v. Principi, 16 Vet. App. 370 (2002); see also Barr, 21 Vet. App. at 309. Additionally, as noted, the Veteran is credible in his report of suffering auditory symptomatology during and since service. This credible report of a continuity of symptomatology suggests a link between his current tinnitus and his active service. See Duenas v. Principi, 18 Vet. App. 512 (2004). (Continued on the next page) The Board acknowledges that there is a negative etiological opinion of record in the form of the September 2013 VA medical opinion. However, the Board declines to accept this opinion as the report fails to adequately address the Veteran's lay assertions of onset and continuity of symptomatology noted above. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Therefore, the September 2013 VA medical opinion cannot form the basis for a denial of entitlement to service connection for tinnitus. The Veteran has competently and credibly described suffering in-service noise exposure and reported a continuity of symptomatology of bilateral auditory pathology in the form of tinnitus since his active service. In sum, the preponderance of the evidence weighs in favor of service connection for the tinnitus. Consequently, the benefit-of-the-doubt rule does not apply, and service connection tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.