Citation Nr: 21011358 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-25 550 DATE: March 1, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to September 1993, with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed a claim for service connection for bilateral tinnitus in February 2016, which was denied by the RO in May 2016. Later the same month, the Veteran filed another claim for tinnitus, accompanied by additional evidence supplied by his private physician, Dr. C.G. In August 2016, the RO found there was new and material evidence to reopen the Veteran’s claim but continued the denial on the merits. In December 2017, the Veteran filed a third claim for tinnitus accompanied by supplemental evidence to reopen the claim. The RO denied the reopening of the claim in February 2018, finding that the evidence submitted by the Veteran was not new and material. The Veteran timely appealed the issue to the Board, who in a June 2019 decision found the supplemental evidence was new and material and reopened the claim yet denied the claim on a direct and presumptive basis. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated and remanded the Board’s January 2018 decision in its entirety. As described above, pursuant to the June 2020 Memorandum Decision, the Court vacated and remanded the Board’s January 2018 decision in its entirety. In the Memorandum Decision, the Court detailed the arguments of the Veteran, namely that the Board incorrectly stated facts concerning his March 2016 VA examination; failed to apply the benefit of the doubt; and failed to decide the matter based on all the evidence. The Secretary conceded that remand was appropriate because the Board erred by addressing the appellant’s underlying claim in the first instance after it decided the claim should be reopened. Memorandum, page 2. The Court noted that with claims to reopen decided prior to February 19, 2019, 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. See 38 U.S.C. § 5108. An exception to the rule under 38 C.F.R. § 3.156(c)(1) provided, in pertinent part, that any time after VA issues a decision on the claim, if VA receives or associated with the claims file relevant official service department records that existed and had not been associated with the claim file when VA first decided the claim, VA will reconsider the claim. The Court agreed with the Secretary that, in the June 2019 decision, the Board erred when it essentially recognized that the appellant’s claim had not been reconsidered based on the addition of relevant service department records, yet failed to address whether it was proper for the Board to reconsider the claim on the merits in the first instance. In other words, when the Board reopens a claim that the RO declined to reopen, it may not consider new evidence and decide the matter without obtaining a waiver from the claimant or determining that the claimant will not be prejudiced by such adjudication. Memorandum, page 3, citing Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). In doing so, the Court found the Board denied the Veteran’s entitlement to “one review on appeal to the Secretary,” and that “when the Board obtains evidence that was not considered by the [RO] and does not obtain the appellant’s waiver, however, an appellant has no means to obtain ‘one review on appeal to the Secretary,’ because the Board is the only appellate tribunal under the Secretary. Id., citing Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). Accordingly, in compliance with the Court’s June 2020 Memorandum Decision, the Veteran’s claim for entitlement to service connection for tinnitus must be remanded to the RO for adjudication in the first instance. The matters are REMANDED for the following action: In accordance with the instructions of the Court, readjudicate the claim for service connection for tinnitus with consideration of all evidence of record. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.