Citation Nr: 21067595 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-59 048 DATE: November 4, 2021 ORDER New and material evidence has been submitted to re-open a claim for entitlement to service connection for a back disability and the petition to reopen the claim is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for left ear pain is remanded. FINDING OF FACT The August 1998 rating decision that denied the Veteran's claim for service connection for a back disability was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final August 1998 rating decision is new and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The August 1998 rating decision that denied the Veteran's claim for entitlement to service connection for a back disability is final; however, new and material evidence has been received and, as such, the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION New and Material Evidence 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 means existing evidence not previously submitted. 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. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed an original claim for service connection for a back disability in May 1998 that was denied in an August 1998 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the August 1998 decision became final. In December 2016, the Veteran filed a petition to reopen the claim. New evidence submitted since the final August 1998 decision includes updated medical records, testimony on onset of the condition, and a July 2021 disability benefits questionnaire (DBQ). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim, the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted for the issues of service connection for a back disability, a hearing loss disability, tinnitus, and a left ear pain disability. With respect to the back disability, remand is warranted for examination. To date, the Veteran has not been afforded a VA examination for her back disability. Additionally, the submitted July 2021 DBQ indicates that the Veteran's midthoracic and myofascial pain is likely related to active duty, but did not address the Veteran's actual diagnoses, to include lumbosacral strain, sacroiliac injury, and sacroiliac weakness. In the absence of further clarification regarding these diagnoses, the Board cannot make an informed decision on the claim. Accordingly, on remand the Veteran should be afforded an examination to assess the nature and etiology of her claimed back disability. With respect to the hearing loss disability, remand is warranted for examination. The Veteran was previously afforded an examination in May 2017, which determined that she did not have hearing loss for VA purposes at the time. However, the Board notes that a subsequent November 2017 VA audiology record indicated that the Veteran's word recognition scores was 92 percent bilaterally. Pursuant to 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability when speech recognition scores using the Maryland CNC Test are less than 94 percent. Here, it is unclear whether the November 2017 VA provider used the Maryland CNC Test. However, the results indicate that, at minimum, the Veteran's hearing has worsened since the May 2017 VA examination. Accordingly, remand is warranted for an examination to determine whether the Veteran has a hearing loss disability for VA purposes and if so, the etiology of any such hearing loss. With respect to tinnitus and left ear pain disability, remand is warranted for examination. The Veteran was previously afforded an examination in May 2017, but the examiner did not provide an opinion on the etiology of tinnitus. Additionally, the examiner did not address the Veteran's history of migrainous otalgia. Further, she did not provide an opinion on the etiology of TMJ, which she determined to be the cause of the Veteran's left ear pain. For these reasons, remand is warranted for an examination to determine the nature and etiology of tinnitus and left ear pain (to include migrainous otalgia and/or TMJ). Any outstanding VA treatment records from August 2018 to present should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from August 2018 to present. 2. Schedule the Veteran for a VA examination for her claimed back disability, to include lumbosacral strain, sacroiliac injury, and sacroiliac weakness. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the back disability to include lumbosacral strain, sacroiliac injury, and sacroiliac weakness at least as likely as not related to service, including as (a) due to her duties associated with her military occupational specialty (MOS) in airfield management and/or (b) April 1993 STR noting lower back pain? In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Attention is invited the (a) June 2021 hearing testimony that her MOS duties included conducting testing of the roads for aircraft safety purposes, which included frequent slamming of the brakes, (b) a January 1993 STR noting a supervisor's report that runway condition reading testing included driving of vehicle on runways and jolting and skidding could occur as a result, and (c) July 2021 DBQ indicating that the Veteran's midthoracic and myofascial pain is likely related to active duty. 3. Schedule the Veteran for a VA examination for her (i) bilateral hearing loss, (ii) tinnitus, and (iii) claimed left ear pain, to include migrainous otalgia and TMJ. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the disability at least as likely as not related to service, including in-service noise exposure to airplanes, helicopters, and sirens? (b) For the diagnoses of tinnitus only, is it at least as likely as not that the disability (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c) If, and only if, the Veteran is determined to have a diagnosis of sensorineural hearing loss for VA purposes, is it at least as likely as not that the disability (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Attention is invited to a February 1992 STR noting that an ear examination was provided because of headaches and an assessment of stress headaches. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.