Citation Nr: 21065666 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-20 958 DATE: October 27, 2021 ORDER The application to reopen the claim for service connection for a heart disability is granted. The application to reopen the claim for service connection for tinnitus is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. In an unappealed January 2010 rating decision, the Veterans Affairs Regional Office denied service connection for tinnitus. 2. Evidence received since the January 2010 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus. 3. In an unappealed January 2010 rating decision, the Veterans Affairs Regional Office denied service connection for a heart condition. 4. Evidence received since the January 2010 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a heart disability. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen the claims for service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2010 rating decision denying service connection for a heart condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 4. New and material evidence has been received to reopen the claims for service connection for a heart disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 5, 1967 to March 8, 1968. There was other National Guard Service. In June 2021 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is of record. The VLJ clarified the issues on appeal, explained the concept of service connection claims, identified potential evidentiary defects, elicited testimony on the elements necessary to substantiate the appeal, and left the record open for 60 days to allow for additional evidence to be submitted. The VLJ. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. NEW AND MATERIAL EVIDENCE 1. The application to reopen the claim for service connection for tinnitus is granted. 2. The application to reopen the claim for service connection for a heart disability is granted. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 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 (a). New evidence means existing 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that evidence received by VA since the last final disallowance of the Veteran's claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). The Veteran's claims for service connection for tinnitus and a heart condition were denied in a January 2010 rating decision. The Regional Office (RO) denied both claims in part because there was no clinical diagnosis of a heart condition or tinnitus. The Veteran did not file a Notice of Disagreement (NOD), and no new and material evidence was submitted within a year of the decision. The January 2010 rating decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 19.52, 20.1103. The Veteran filed an application to reopen the claims in December 2012. The RO denied the claims in a December 2013 rating decision. We note that the RO found new and material evidence had been obtained for the heart disability claim, specifically ischemic heart disease had been diagnosed, and reopened the claim. The RO determined no new and material evidence had been submitted in support of the claim for tinnitus, and found the Veteran did not have a diagnosis of tinnitus. The RO issued a Supplemental Statement of the Case in April 2015, and the appeals were certified to the Board. Tinnitus At the time of the January 2010 rating decision, service treatment records and post-service treatment records were absent any diagnosis of, treatment for, or complaints relating to tinnitus. The Veteran's lay statements attributed ringing in his ears to exposure howitzer fire during his service. We again note that the January 2010 rating decision denied service connection for tinnitus primarily because there was no diagnosis. Evidence received since the January 2010 rating decision consists of the Veteran's lay statements, including his June 2021 testimony at the Board hearing, medical treatment records, and an April 2013 VA examination and nexus opinion for hearing loss and tinnitus. The April 2013 examiner noted the Veteran reported transient ringing ear noises that occurred about once per month or less and lasted seconds to no more than two minutes. The examiner determined that the Veteran's description of his symptoms was best classified as "transient ear noises" and did not meet the clinical definition of tinnitus. The examiner cited a 1992 publication titled "Proceedings of the Fourth International Tinnitus Seminar" that defined tinnitus as lasting at least five minutes and occurring at least twice weekly. The December 2013 rating decision shows the RO relied on the examiner's findings to conclude the Veteran still did not have tinnitus and deny reopening the claim for service connection. A February 2017 VA audiology consultation shows a positive history of tinnitus. The Veteran reported bilateral intermittent ringing in his ears that occurred weekly and lasts anywhere from 15 to 20 minutes to half a day. At the June 2021 Board hearing, the Veteran testified that the ringing in his ears had been worsening as he got older and his hearing worsened, and that while the ringing in his ears was not constant at the time of the April 2013 VA examination, he now had ringing in his ears all the time. The April 2013 VA examination report, the February 2017 VA audiology consultation, and the Veteran's testimony at the June 2021 Board hearing are new and material evidence. The February 2017 VA audiology notes show a positive history for bilateral intermittent tinnitus occurring weekly and lasting anywhere from 15 to 20 minutes to half a day. Together with the Veteran's June 2021 testimony, this suggests his symptoms would constitute tinnitus per the April 2013 examiner's cited definition of tinnitus. We note that the Veteran's lay statements of record at the time of the January 2010 rating decision did not suggest his symptoms were constant or frequent. Furthermore, tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, in January 2010 the RO denied the Veteran's claim for service connection for tinnitus largely because there was no diagnosis. New evidence has been submitted that is relevant to establishing a diagnosis of tinnitus. The claim for service connection for tinnitus is reopened. Heart Disability At the time of the January 2010 rating decision, the evidence consisted of partial service treatment records, partial military personnel records, some post-service treatment records, and lay statements submitted in support of the claim. Regarding a heart disability, the service treatment and military personnel records showed the Veteran had chest pain in June 1998 after unloading a truck and was assessed with atypical chest pain secondary to exertion. An August 1999 line of duty determination shows spontaneous onset of chest pain while preparing breakfast in the mess hall on August 2, 1988 and a medical diagnosis of "possible angina pectoralis." Relevant evidence received since the January 2010 rating decision consists of additional service treatment records and personnel records, an April 2013 VA examination, and private treatment records. The additional service treatment and personnel records contain more detailed descriptions of the Veteran's June 1998 and August 1999 chest pains. A line of duty determination reflects the June 1998 exertional chest pain occurred during inactive duty training authorized under 32 U.S.C. § 502 on June 27 and 28, 1998. August 1999 emergency care notes reflect an impression of chest discomfort and possible angina suggestive of ischemic heart disease. Documents from the Mercy Hospital show impression of chest pain and mitral valve prolapse. An April 2000 report of medical history show the Veteran reported a history of chest pain and heart trouble, and the examining physician noted over-exertion and a weak heart valve. Private treatment records show the Veteran was referred to a private cardiologist in January 2013 following complaints of rapid palpitations and chest pain. The Veteran underwent cardiac catheterization in January 2013 following complaints of chest pain and an abnormal exercise stress test. He was assessed with minimal coronary artery disease and noncardiac chest pain. The April 2013 VA examiner diagnosed ischemic heart disease. Here the additional medical treatment records, personnel files, and the April 2013 VA examination that were obtained following the January 2010 constitute new and material evidence. At the time of the January 2010 rating decision the Veteran's service records were incomplete. For example, the evidence available at the time of the January 2010 rating decision does not show that the June 1998 chest pain occurred during inactive duty for training under 32 U.S.C. § 502. Furthermore, treatment records obtained after the January 2010 rating decision show the Veteran was assessed with mitral valve prolapse in August 1999. While angina pectoralis was previously noted, the August 1999 diagnosis of mitral valve prolapse does not appear to have been of record in January 2010. This new evidence relates to heart pathology and was unavailable to agency adjudicators in January 2010. Private treatment records show the Veteran was diagnosed with coronary artery disease in January 2013, and the VA examiner diagnosed ischemic heart disease in the April 2013 examination report. Considering the Regional Office denied the Veteran's claim for service connection for a heart condition largely because there was no diagnosis, new evidence has been submitted that is relevant to establishing a diagnosis. The claim for service connection for a heart disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. Remand is required to obtain a new VA examination and medical opinions addressing whether the Veteran's diagnosed tinnitus is related to his service or is secondary to his service-connected bilateral sensorineural hearing loss. Here, the Veteran was provided a VA examination for hearing loss and tinnitus in April 2013. Regarding tinnitus, the examiner noted the Veteran reported transient ringing ear noises that occurred about once per month or less and lasted seconds to no more than two minutes. The examiner determined that the Veteran's description of his symptoms was best classified as "transient ear noises" and did not meet the clinical definition of tinnitus. The examiner cited a 1992 publication titled "Proceedings of the Fourth International Tinnitus Seminar" that defined tinnitus as lasting at least five minutes and occurring at least twice weekly. The examiner declined to diagnose tinnitus and did not provide any nexus opinions. Subsequent evidence suggests that the Veteran now has tinnitus. February 2017 VA audiology notes show a positive history for bilateral intermittent tinnitus occurring weekly and lasting anywhere from 15 to 20 minutes to half a day. At the June 2021 Board hearing the Veteran testified that the ringing in his ears had worsened as he got older and his hearing worsened, and that while the ringing in his ears was not constant at the time of the April 2013 VA examination, he now had ringing in his ears all the time. This newer evidence suggests the Veteran now has tinnitus per the definition the April 2013 examiner cited, i.e., that tinnitus is defined as lasting at least 5 minutes and occurring at least twice weekly. The Board again notes that tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles, 16 Vet. App. 370. Once VA undertakes to provide an examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The April 2013 VA examination is no longer adequate considering subsequently submitted evidence. In addition, no VA nexus opinions were provided by the April 2013 examiner, and the record contains no other competent evidence addressing the etiology of the Veteran's claimed tinnitus. The Veteran generally asserts that tinnitus is due to exposure to howitzer fire during his service when he was a gunnery sergeant. He has also asserted that the tinnitus is secondary to his service-connected hearing loss. A DD-214 shows the Veteran's military occupational specialty (MOS) was supply specialist during his period of active duty from September 5, 1967 to March 8, 1968. The Veteran's NGB Form 22 shows he was a sergeant first class at separation from service in the National Guard in 2001, and that his MOS had been cannon crewmember from September 25, 1982 through May 14, 1996. The December 2013 rating decision shows the Veteran was granted service connection for bilateral hearing loss because his MOS of gunnery sergeant is consistent with acoustic trauma and his hearing loss was been linked to that acoustic trauma by the April 2013 examiner. See December 2013 Rating Decision. Given the foregoing, the Board finds that a new VA examination should be provided for the Veteran's claimed tinnitus to accurately determine the nature and etiology of the claimed disability. 2. Entitlement to service connection for a heart disability is remanded. Remand is required to obtain outstanding private treatment records and to obtain a new VA examination and medical opinion. The Veteran's claim for service connection for a heart disability is based on two episodes of chest pain and subsequent treatments that occurred during two training periods in June 1998 and August 1999 when he was in the National Guard. Regarding the chest pain in June 1998, a Report of Investigation Line of Duty and Misconduct Status determination dated June 29, 1998 shows the Veteran experienced chest pain and shortness of breath on June 27, 1998 when loading trucks for a drill weekend. The form indicates the Veteran's service was from June 27, 1998 to June 28, 1998 and was INACDUTRA under the provisions of 32 U.S.C. § 502. Regarding the chest pain in August 1999, a Report of Investigation Line of Duty and Misconduct Status form indicates the Veteran had service from July 31, 1999 to August 14, 1999, that he had chest pain and shortness of breath on August 2, 1999, and that the service was "inactive duty training" under 32 U.S.C. § 503. However, a separate Statement of Medical Examination and Duty Status form that indicates the Veteran's service from July 31, 1999 to August 14, 1999 was active duty under 32 U.S.C. § 503. Both forms indicate the Veteran's service was for annual training, and 32 U.S.C. § 503 applies to participation in National Guard field exercises. Given that the Veteran's period of service from July 31, 1999 to August 14, 1999 was a 15-day period for annual training, it is unlikely that this period was INACDUTRA. Whether the Veteran's service was ACDUTRA or INACDUTRA is vital because evidence shows the Veteran is currently diagnosed with valvular and ischemic heart diseases. "Active service" for VA benefits purposes includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, whereas generally only injuries incurred or aggravated in line of duty during INACDUTRA are eligible for service connection. See 38 U.S.C. §§ 101 (24), 106, 1110. During the June 2021 Board hearing the Veteran and his representative reported that the Veteran had annual appointments with a private cardiologist in Oak Ridge, Tennessee and that these records were not associated with the claims file. In addition, January 2017 VA treatment records reflect that the Veteran was followed by a private cardiologist named Dr. Menes. Although some private treatment records were associated with the claims folder when the Veteran filed to reopen his claim for a heart disability in December 2012, the Veteran's testimony and the VA treatment records show that further relevant private treatment records remain outstanding. The Veteran's June 2021 testimony also suggests that his primary heart disorder is a valve disorder. There are some relevant records associated with the claims folder. Treatment records dated August 1999 show he was assessed with mitral valve prolapse while at the hospital following his chest pain during ACDUTRA. The available post-service private treatment records show coronary artery disease was diagnosed in January 2013. Another private record notes arrhythmia and palpitations in January 2013. An October 2014 VA record also notes a diagnosis of valvular heart disease. There are otherwise few treatment records, private or otherwise, relating to any current valvular disease. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159 (c)(1). VA has not attempted to obtain these private records. Therefore, the Board finds that on remand, all outstanding private treatment records pertaining to the Veteran's treatment for his heart should be obtained and associated with the claims folder. Additionally, remand is required to obtain a new VA examination and opinion. The Veteran was provided a VA heart disease examination in April 2013. The only diagnosis noted was ischemic heart disease as diagnosed in the January 2013 private cardiology records. In a December 2013 opinion, the examiner concluded that it was less likely than not that the Veteran's current ischemic heart disease had manifested in August 1999 with chest pain. The examiner only addressed the Veteran's chest pain, as noted in the August 1999 line of duty determination. At the time of the April 2013 VA examination and December 2013 opinion, the Veteran's personnel files and service treatment records were incomplete. More complete records were obtained in 2016. These records include August 2, 1999 treatment records from Mercy Hospital diagnosing mitral valve prolapse. In addition, an August 8, 1999 followup record for the Veteran's chest pain shows a diagnostic impression of "chest discomfort syndrome suggestive of ischemic heart disease." These additional diagnoses and treatment records were not addressed in the April 2013 examination or December 2013 opinion. The December 2013 opinion also does not address the Veteran's June 1998 chest pains. Given the foregoing, the Veteran should be provided a new VA examination to identify all current heart disabilities, and new medical opinions should be obtained. The matters are REMANDED for the following action: 1. Request the Veteran to provide authorization to obtain any outstanding medical treatment records relevant to his claim for service connection for a heart disability. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. After any outstanding private treatment records are obtained, schedule the Veteran for a new VA examination to determine the nature and etiology of the Veteran's claimed heart disabilities. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must clarify all current heart diagnoses. Based on examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any currently diagnosed heart disorder was incurred in or aggravated by a period of ACDUTRA or INACDUTRA during the Veteran's National Guard service. Specifically, the examiner must address the Veteran's June 1998 period of INACDUTRA and the August 1999 period of service. The examiner must address the Veteran's chest pains that occurred during these periods of service, and the relevant diagnoses rendered in treatments following the June 1998 and August 1999 in-service chest pains, including but not limited to angina pectoralis and mitral valve prolapse. A complete rationale for any opinion expressed should be provided. 3. Schedule the Veteran for a new VA examination to determine the nature and etiology of the Veteran's claimed tinnitus. Based on examination and a review of the record, the examiner should: a. Provide an opinion as to whether tinnitus is at least as likely as not (i.e., a probability of 50 percent or greater) related to active service. b. Provide an opinion as to whether tinnitus is at least as likely as not (i.e., a probability of 50 percent or greater) that tinnitus was proximately due to or aggravated by the Veteran's service-connected bilateral sensorineural hearing loss disability. A complete rationale for all opinions expressed should be provided. The Veteran is competent to report that which he has experienced, to include symptoms of tinnitus. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If a benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.