Citation Nr: 21011983 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-16 855 DATE: March 3, 2021 ORDER 1. New and material evidence having been presented, the claim for service connection for tinnitus is reopened. REMANDED 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated 70 percent, is remanded. 3. Entitlement to an increased rating for Lisfranc fracture of the right foot, rated 20 percent, is remanded. 4. Entitlement to service connection for a cervical spine disability as secondary to service-connected Lisfranc fracture of the right foot is remanded. 5. Entitlement to service connection for a lumbar spine disability as secondary to service-connected Lisfranc fracture of the right foot, is remanded. 6. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability or disabilities, is remanded. 7. The reopened claim of entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In an April 2014 decision, the claim for service connection for tinnitus was denied based on absence of evidence of a link between service and current tinnitus. The Veteran did not appeal the decision, and it became final. 2. Evidence added to the record since the April 2014 decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for tinnitus. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to November 2009. The Department of Veterans Affairs (VA) is grateful for her service. The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing in August 2020. A transcript is of record. 1. New and material evidence having been presented, the claim for service connection for tinnitus. Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.110. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. At a February 2014 VA examination for hearing loss and tinnitus, the examiner found normal hearing to be present in each ear. However, the Veteran reported having recurrent tinnitus with onset in service. She described that the tinnitus often lasted 10 to 20 minutes and was accompanied by otalgia and aural pressure/fullness and a temporary decrease in hearing. She also reported that she could not sleep at night when the tinnitus was present. The February 2014 examiner opined that the tinnitus was not caused by military service because the Veteran currently had normal hearing and because the Veteran used hearing protection during service. However, this opinion does not speak to the question of onset in service even though the Veteran provided a history of onset in service. The Veteran’s claim for service connection for tinnitus was previously denied by an April 2014 VA Regional Office (RO) decision based on absence of evidence of a nexus between service and current tinnitus, with a negative opinion provided by the February 2014 examiner. The Veteran did not timely appeal this decision or submit new and material evidence within a year of notice of the decision, and hence it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran subsequently submitted new claims for service connection for tinnitus, which effectively serve as a request to reopen the claim. At the August 2020 hearing, the Veteran testified to sporadically, but at least three times per week, hearing a “beep” in one or both ears. She added that she heard this both in service and after service. (Hearing transcript, ppg. 13-14.) The Board finds that the Veteran’s testimony provides additional detail concerning the presence of tinnitus both in service and following service. On this basis, reopening of the claim is warranted. The reopened claim is the subject of remand, below. REASONS FOR REMAND 2. Entitlement to an increased rating for PTSD, rated 70 percent. At the August 2020 hearing, the Veteran testified that she has continued regular treatment for her diagnosed PTSD. The most recent VA treatment records in the file are from January 2017. Thus, the Board finds that the updated treatment records should be obtained. 3. Entitlement to an increased rating for Lisfranc fracture of the right foot, rated 20 percent. 4. Entitlement to service connection for a cervical spine disability as secondary to service-connected Lisfranc fracture of the right foot. 5. Entitlement to service connection for a lumbar spine, to include as secondary to service-connected Lisfranc fracture of the right foot. The Veteran was previously examined by VA for the Lisfranc fracture in May 2013 and March 2015. At the August 2020 hearing the Veteran testified that she had missed a more recently scheduled examination to address her Lisfranc fracture because the notice sent to her arrived after the date of examination. She also expressed a willingness to report for an examination if sone was scheduled. Based on this notice failure, a new VA examination is warranted to address the current nature and extent of the service-connected Lisfranc fracture involving her right foot. The Veteran testified that her foot hurts every day, and she explained that her job required a lot of walking and that if she was on her feet for an extended period her foot would swell up. She added that she will walk on the side of her foot to avoid pressure on the affected area, and the she could not wear shoes that put too much pressure on the top of her right foot. She testified that her doctor had explained that she could develop back pains due to her altered gait as a result of the Lisfranc fracture and that cervical difficulties she was having could also be related. The Board must recognize the Veteran’s report of what medical professionals have stated supporting her claims. The VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran is competent to report the symptoms that she experienced and his history of treatment. Upon remand examination, questions of current cervical and low back disabilities being caused or aggravated by her Lisfranc fracture, including due to any altered gait, should be addressed. VA treatment records from December 2010 and August 2011 show complaints of low back pain. The December 2010 treatment record shows she reported falling off a horse during the summer and having residual pain in the tailbone after sitting on it for too long. The August 2011 treatment record shows the examiner noted that the pain had reportedly been present “most of the past year” since she fell off a horse and landed on her tailbone. Upon examination, the examiner should consider this possible intercurrent cause of a lumbar spine disability. 6. Entitlement to service connection for migraine headaches, to include as secondary to service-connected disabilities, is remanded. Service treatment records do not reflect a chronic headache condition. In the November 2009 Report of Medical History, the Veteran denied having a history of frequent or severe headache. VA treatment records do not document a history of headaches dating from service. In January 2014, the Veteran was seen for a complaint of occipital headache for seven days following an argument with her boyfriend when he pulled her hair, but subsequent records do not reflect continuation of this headache condition. When the Veteran was seen for VA care in November 2016, she presented with many medical conditions including complained of migraine headaches with aura. A clinician noted that factors potentially contributing to her migraines included lack of sleep, stress, ongoing treatment with non-steroidal anti-inflammatory drugs (NSAIDs) for her foot disorder, and her prescribed birth control medication. Thus, both symptoms of her PTSD (potentially sleep difficulties and mental stress) and medication for her Lisfranc fracture are implicated as potentially causing or aggravating migraines. At the August 2020 hearing, the Veteran testified that during service she suffered from migraines with aura, and that medication she had been prescribed caused her migraines to return. She added that being placed on birth control medication at the suggestion of her physician to help alleviate the migraines helped but that since she had stopped taking birth control medication the migraines have returned. A VA examination is warranted to address the likelihood that service-connected disabilities, including medications for these disabilities, caused or aggravated her migraine headaches. Because of the Veteran’s testimony about a history of migraines in service, the examiner should also provide an opinion addressing onset in service. 7. Entitlement to service connection for tinnitus, as a reopened claim on the merits, is remanded. A new VA examination is required to address the likelihood that current tinnitus had its onset in service, with due consideration of the Veteran’s self-reported history of tinnitus. This question was not answered by the February 2014 VA examiner. A new examination rather than an addendum is required because it is not plausible that the prior examiner would recall that examination seven years later. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from January 2017 to the present. 2. Schedule an examination to address the nature and severity of the Veteran’s service-connected Lisfranc fracture of the right foot, to include ganglion cyst and arthritis. 3. Schedule an examination to address whether the Veteran has developed cervical spine and/or lumbar spine disabilities as a result of the service-connected Lisfranc fracture of the right foot, to include ganglion cyst and arthritis. The claims file must be reviewed, and any necessary tests or studies should be conducted To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran is service connected for Lisfranc fracture of the right foot, to include ganglion cyst and arthritis. • She contends that this service-connected disability has impacted her gait and has caused her to develop a cervical spine disability. She also contends that the service-connected right foot disability has caused her to develop a lumbar spine disability. • A December 2010 VA treatment record shows the Veteran reported falling off a horse during the summer and having residual pain in the tailbone after sitting on it for too long. See VBMS entry with document type, “CAPRI,” receipt date 04/24/2015, pp. 17-18. • An August 2011 VA treatment record shows the Veteran reported low back pain for most of the past year since she fell off a horse and landed on her tailbone. She reported increased pain for the past three weeks, which was centered on her mid lower back. The examiner diagnosed low back pain. See VBMS entry with document type, “CAPRI,” receipt date 04/24/2015, pp. 9-10. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to address the following questions: (1.) Does the Veteran have a cervical spine disability? (2.) Does the Veteran have a lumbar spine disability? (3.) If there is a current disability, is it at least as likely as not (50 percent or greater probability) that the service-connected Lisfranc fracture of the right foot has caused a cervical spine disability and/or a lumbar spine disability? Please state upon what facts and medical principles you base the opinion. (4.) If the answer to question (3.) is negative, is it at least as likely as not (50 percent or greater probability) that the service-connected Lisfranc fracture of the right foot aggravated a cervical spine and/or lumbar spine disability? (This is a different question than causation.) Please state upon what facts and medical principles you base the opinion. (5.) If the examiner finds that the service-connected Lisfranc fracture of the right foot aggravates the cervical spine disability and/or lumbar spine disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the cervical spine disability and/or lumbar spine disability prior to aggravation. If the examiner is unable to establish a baseline for the headaches prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner should provide a complete explanation for any opinions expressed. 4. An examination should be conducted by a clinician with sufficient expertise to address the nature and etiology of any headache disorder present. The claims file must be reviewed, and any necessary tests or studies should be conducted. For any headache disorder present during the claims period, the examiner should do the following: (1.) Is it at least as likely as not (50 percent or greater probability) that the headache disorder developed in service or is otherwise related to period of active duty from August 2004 to November 2009? Please state upon what facts and medical principles you base the opinion. (2.) If the answer to question (1.) is negative, is it at least as likely as not (50 percent or greater probability) that the headache disorder was caused by the service-connected PTSD and any associated sleep impairment, and/or was caused by medications to treat the service-connected disorders, including NSAIDs to treat the service-connected Lisfranc fracture involving the right foot? Please state upon what facts and medical principles you base the opinion. (3.) If the answer to question (2) is negative, is it at least as likely as not (50 percent or greater probability) that the headache disorder was aggravated by the service-connected PTSD and any associated sleep impairment, or was caused by medications to treat the service-connected disorders, including NSAIDs to treat the service-connected Lisfranc fracture involving the right foot? (This is a different question than causation.) Please state upon what facts and medical principles you base the opinion. (4.) If the examiner finds that PTSD or the medications to treat the service-connected disorders, including NSAIDS to treat her Lisfranc fracture, aggravates the headaches, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the headaches prior to aggravation. If the examiner is unable to establish a baseline for the headaches prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner should provide a complete explanation for any opinions expressed, to include a discussion of medical principles and/or medical literature. 5. Schedule an examination to address the nature and etiology of any tinnitus present during the claim period. The claims file must be reviewed, and any necessary tests or studies should be conducted. The examiner is advised that while the Veteran was previously afforded an examination in February 2014, the examiner opined that the Veteran’s military service did not cause her tinnitus, and the examiner did not address whether the tinnitus had its onset in service. A disability is subject to service connection if it has its onset in service, regardless of cause. For any tinnitus present during the claim period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the tinnitus had its onset in service or is otherwise related to service. Please state upon what facts and medical principles you base the opinion. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.