Citation Nr: 21077420 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-40 468 DATE: December 29, 2021 ORDER New and material evidence having been received, entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for migraines, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a right leg disability, to include as secondary to varicose veins, is remanded. FINDINGS OF FACT 1. A January 2013 rating decision denied entitlement to service connection for tinnitus and the Veteran did not appeal the denial. The January 2013 rating decision is final. 2. Since the final January 2013 rating decision, new and material evidence has been received that raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record demonstrates that his tinnitus was incurred in or the result of his service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the final January 2013 rating decision to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1983 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a July 2021 Board hearing. A copy of the transcript has been associated with the file. 1. New and material evidence having been received, the claim to reopen the previously denied entitlement to service connection for tinnitus claim is granted. The Veteran seeks to reopen a claim of service connection for tinnitus. By way of history, a January 2013 rating decision originally denied entitlement to service connection for tinnitus. The January 2013 rating decision was not appealed, and reconsideration was not requested. The denial is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In October 2015, the Veteran requested to reopen his claim of service connection for tinnitus. A March 2016 rating decision continued and confirmed the previous denial of service connection for tinnitus, noting no new evidence had been submitted. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the Board finds that new and material evidence has been received since the last final rating decision. Relevant evidence added to the claims file since the January 2013 rating decision includes hearing testimony by the Veteran during his July 2021 virtual Board hearing indicating a link between the Veteran's tinnitus and service. This evidence satisfies the definition of new and material evidence, as it was not before decision makers at the time of the last final rating decision and provides evidence towards substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for tinnitus. 2. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if the Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. During his July 2012 VA examination provided in conjunction with his tinnitus claim, the Veteran reported recurrent bilateral tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not related to service. For rationale, the examiner noted the Veteran reported onset between 5-6 years ago and he denied any hearing loss or ear trouble on his examination in October 1990. During the July 2021 Board hearing, the Veteran testified that he experienced tinnitus after his time in Germany, from the noise exposure from target practice with tanks. See Hearing Testimony, Page 6. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. The Board finds the Veteran's report of tinnitus occurring during and since service to be sufficiently credible to support a diagnosis, in-service incurrence, and nexus to support the service connection claim. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends his low back disability is related to service. Specifically, he contends his low back disability is related to his in-service duties as a construction equipment mechanic, including heavy lifting and carrying. The Veteran was provided a VA Back examination in December 2015. A 2015 diagnosis of degenerative arthritis of the spine was noted. The examiner opined that the Veteran's back disability was less likely than not incurred in or caused by service. For rationale, the examiner noted that there was documentation indicating pain in the upper back in August 1987, but no documentation the Veteran developed ongoing chronic back pain while in service. In the Veteran's VA Form 9 submitted in July 2017, he indicated that he was treated for his back in service, with symptoms affecting him to present day. During his July 2021 Board hearing, the Veteran testified to "a lot of heavy, heavy carrying" in service, including moving 110-pound tires as part of his daily duties and noted he was still experiencing symptoms to date. The Veteran's representative argued that the December 2015 examiner did not take into consideration his military occupational specialty (MOS) and the possibility of overuse of the back when formulating the opinion provided. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The December 2015 opinion is inadequate to allow the Board to make a fully informed decision and a remand is necessary. The December 2015 examiner relied on the absence of contemporaneous medical evidence to support a negative nexus opinion, did not consider the Veteran's lay statements, and did not provide rationale for why the Veteran's subjective symptoms did not constitute evidence of a chronic condition. On remand, the examiner is asked to consider and discuss the Veteran's lay statements regarding the in-service treatment for a back condition, his contentions of duties associated with his MOS affecting his low back, and the continual back symptoms since leaving service. 2. Entitlement to service connection for migraines, to include as secondary to service-connected disease or injury, is remanded. The Veteran seeks service connection for headaches, to include as secondary to his service-connected hypertension or his service-connected seizure disorder. The Veteran was provided a Headaches VA examination in December 2015. A 2015 diagnosis of headache not otherwise specified (NOS) was noted. The examiner opined that the Veteran's headaches were less likely than not related to his seizures and hypertension. For rationale, the examiner noted that the Veteran had multiple headache complaints with different diagnoses in the record, including migraine headache, headache associated with subdural hematoma, tension headache, headache diagnosis along with seizure, and hypertension and headaches. There was insufficient documentation on review of the available records to indicate that the Veteran's headaches are as likely as not due to his seizure disorder and hypertension. Therefore, the examiner was unable to render a medical opinion without resorting to mere speculation. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. The December 2015 opinion is inadequate to allow the Board to make a fully informed decision and a remand is necessary. The December 2015 opinion only addressed the causation element of secondary service connection and did not address the aggravation element of secondary service connection or provide a direct nexus opinion. Both causation and aggravation must be discussed for an opinion on secondary service connection to be adequate. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Furthermore, the VA examiner did not take into consideration the Veteran's statements regarding the onset of his condition and his history of symptomology as stated in his July 2017 VA Form 9, where the Veteran related in detail how his headaches started and asserted that his headaches have continued since his active- duty service. During his July 2021 Board hearing, the Veteran also testified regarding the continuity of his symptoms. He testified to experiencing headaches on a continual basis since service and experiences approximately 6 headaches a month. See Hearing Transcript, Page 16. An opinion with consideration of the Veteran's statements regarding the complete history of onset and symptoms is required. Consequently, VA medical opinions are required to address both direct and secondary service connection, to include consideration of the Veteran's contentions. 3. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran seeks entitlement to service connection for a bilateral foot disability. He contends that his foot condition is a result of his duties associated with his MOS of heavy equipment repairman and from extensive wearing of infantry boots. See Notice of Disagreement, April 2016; Hearing Testimony, Page 21. The Veteran was provided a Foot Conditions VA examination in December 2015. Diagnoses of bilateral flatfoot and bilateral plantar fasciitis were noted. The examiner opined that the Veteran's bilateral foot conditions were less likely than not related to service. For rationale, he noted that there was documented evidence of a transverse fracture through the proximal portion of the 1st proximal phalanx and a chip fracture of the medial and proximal portion of the 1st metatarsal, but no documentation the Veteran developed ongoing or chronic foot problems while in service. The Board finds the December 2015 insufficient for adjudicatory purposes. The examiner's negative nexus opinion was based on the absence of treatment in service and did not consider the Veteran's lay statements regarding onset and duration of his symptoms. The Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. Accordingly, the Board finds that remand is necessary to obtain an addendum medical opinion regarding the nature and etiology of any diagnosed bilateral foot disability. 4. Entitlement to service connection for a right leg disability, to include as secondary to varicose veins, is remanded. The Veteran is seeking service connection for right leg pain, as secondary to his varicose veins. The Veteran was provided an Artery and Vein Conditions VA examination in December 2015. A diagnosis of bilateral lower extremity varicose veins was noted. The Veteran reported his symptoms began during service and have worsened, with pain and a burning feeling in his right leg/calf. He reported his vascular condition affects his ability to stand or walk for long periods of time. Bilateral persistent statis pigmentation or eczema was noted, with intermittent bilateral edema of extremity. The examiner opined that the Veteran's right leg disability was less likely than not proximately due to or the result of his service-connected condition. For rationale, the examiner noted that multiple records indicated the Veteran had varicosities status post injections of the veins. A medical history record from October 1990 was silent for any ongoing or chronic varicosities/complaints. There is currently insufficient documented evidence available for review and no diagnosis was found to indicate that the right leg condition is due to the Veteran's varicose veins status post excision with local anesthesia. During his July 2021 Board hearing, the Veteran testified to "burning pain" in his legs. He also testified when he is walking, he often falls. The Veteran's representative argued that his right leg pain should be considered under Saunders. See Hearing Transcript, Page 22. Under Saunders v. Wilkie, the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Pursuant to Saunders, the Veteran should be afforded a new VA examination on remand to diagnose any right leg disability during the pendency of this appeal and determine whether his right leg pain alone resulted in functional impairment. The Board also notes that the absence of evidence, such as a diagnosis of a claimed disability in service treatment records, does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). On remand, the examiner should refrain from basing any etiologic opinion on the lack of diagnosis of any claimed disability in the Veteran's treatment records. Additionally, regarding secondary service connection, while the examiner explained that the Veteran's right leg disability was not causally related to his varicose veins, the examiner did not separately and clearly address whether the right leg pain was aggravated by the varicose veins. Both causation and aggravation must be discussed for an opinion on secondary service connection to be adequate. El-Amin, 26 Vet. App. at 140-41. Thus, the Board finds a remand is necessary for a new examination regarding the Veteran's right leg disability, for clarification as to whether the Veteran's right leg pain is from a separate and distinct disability or is caused by or aggravated by his service-connected varicose veins, or if his right leg pain alone results in functional impairment. Finally, a remand is required to obtain outstanding VA treatment records. Prior to going on the record in his July 2021 Board hearing, the Veteran indicated outstanding treatment records. An attempt to procure such records should be made on remand. The Veteran should also be afforded the opportunity to submit any outstanding private treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's file any outstanding relevant VA treatment records, particularly including records from treatment received around January 2021. If no such records are located, that fact should be documented in the claims file. The Veteran should also be given the opportunity to identify and/or submit any additional private treatment records pertinent to his claims. 2. After completing the above-specified development, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to obtain an etiological opinion with regards to the Veteran's claim for a low back disability. The Veteran's entire claims file, including a copy of this remand, must be made available to and be reviewed by the examiner, and the VA report should reflect that such a review was completed. The examiner should then provide responses to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability (1) began during active service (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In addition to a full review of the record, the examiner is asked to address the (1) February 1990 in-service treatment record noting lower back pain for 4 days, diagnosed as probably a spasm of the lumbar sacral muscles; (2) November 2015 post service treatment record noting chronic lower back pain for 15 years, gradually worsening; (3) December 2015 post service treatment record noting constant localized back pain; (4) August 2016 treatment record noting chronic lower back pain with a November 2015 plain radiograph showing degenerative disc disease, spondylosis, and mild vertebral compression. The clinical significance of the in-service notation of back pain should be addressed as well as the lay statements indicating that the Veteran experienced back pain in service due to duties associated with his MOS (including heavy lifting/carrying), with continual symptoms since service. The examiner is advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history must be acknowledged and considered in formulating any opinions. 3. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to obtain an etiological opinion with regards to the Veteran's claim for headaches. The entire claims file, to include a copy of this remand, must be provided to the examiner and reviewed in full. A complete history of symptoms should be elicited from the Veteran. The clinician is asked to opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches (1) began during active service (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are caused by his service-connected seizure disability; (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are aggravated (worsened in severity beyond the natural progression of the disease) by his service-connected seizure disability; (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are caused by his service-connected hypertension; (e.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are aggravated (worsened in severity beyond the natural progression of the disease) by his service-connected hypertension. The examiner is reminded that for a secondary opinion to be adequate, separate rationales for both causation and aggravation must be provided. In providing this opinion, the examiner is requested to consider the (1) December 1988 service treatment record noting headaches will occasionally precede seizures recently; (2) January 1989 service treatment record that documented a history of recurrent headaches; (3) February 1990 service treatment record noting no recurrent seizures but complaints of headaches for the past 3 days. Additionally, the examiner is advised that the Veteran is competent to report his medical history, including when his symptoms began and any continuity of symptomatology, and such reports must be acknowledged and considered in formulating any opinion. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 4. Obtain an addendum medical opinion regarding the nature and etiology of the Veteran's bilateral foot disability. If the examiner determines that another VA physical examination is necessary, such an examination should be scheduled. The entire claims file must be provided to, and reviewed by, the examiner. For each diagnosed foot disability, the examiner is asked to opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral foot disability had its onset during, or is otherwise related to, the Veteran's active duty service. The examiner should consider and address the Veteran's contentions made during the July 2021 Board hearing that his bilateral foot condition is related to a left toe injury sustained during service and also from extensive wearing of infantry boots because they are flat and wide. He testified to continual symptoms since service. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 5. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to obtain an etiological opinion with regards to the Veteran's claim for a right leg disability. The entire claims file, to include a copy of this remand, must be provided to the examiner and reviewed in full. A complete history of symptoms should be elicited from the Veteran. The clinician is asked to opine as to the following: (a.) Does the Veteran have a current, separate and distinct right leg pain disability or is it a symptom of his service-connected varicose veins? Please explain why or why not the pain is a manifestation of the service-connected varicose veins or a separate disorder. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right leg pain and any separate and distinct right leg pain disability found began in service or is related to active service. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right leg pain was caused by his service-connected varicose veins; (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right leg pain was aggravated by his service-connected varicose veins. The examiner is asked to consider the (1) November 2015 treatment record that noted chronic right lower extremity varicose veins that causes debilitating moderate to severe dull aching pain; (2) April 2016 treatment note that reported right lower extremity (RLE) varicose veins continue to be painful; (3) August 2016 treatment note that reported RLE varicose veins causing debilitating dull aching pain exacerbated by and limiting activity; (4) a September 2016 treatment note that reported the RLE varicose veins were causing the Veteran discomfort and compression hose provided some support but unlikely to be a good long term option; (5) a January 2017 treatment note that reported varicose veins since the 1980's that cause RLE mild throbbing discomfort when performing activity for extended periods, with RLE edema to the ankle. If no diagnosed disability exists, the examiner is directed to state whether there is any functional impairment caused by the Veteran's reported right leg pain. If functional impairment exists, the examiner is asked to presume diagnosis of a disability and provide an etiologic opinion based on that diagnosis. (Continued on the next page) A complete rationale for all opinions rendered should be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, Associate 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.