Citation Nr: 21012343 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-11 637 DATE: March 4, 2021 ORDER The previously denied claim of entitlement to service connection for a bilateral ear condition (hereafter tinnitus) is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for a neck condition is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for mini strokes is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for a stomach condition is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a neck condition, to include as secondary to mini strokes, is remanded. Entitlement to service connection for mini strokes is remanded. Entitlement to service connection for a stomach condition is remanded. FINDINGS OF FACT 1. In a December 2014 rating decision, the RO denied service connection for tinnitus, service connection for a neck condition, service connection for mini strokes and service connection for a stomach condition; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 2. Evidence associated with the claims file since the December 2014 denial of tinnitus relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Evidence associated with the claims file since the December 2014 denial of a neck condition relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. Evidence associated with the claims file since the December 2014 denial of mini strokes relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 5. Evidence associated with the claims file since the December 2014 denial of a stomach condition relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 6. Resolving all doubt in the Veteran’s favor, tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The December 2014 RO decision, which denied the Veteran’s claim of service connection for tinnitus, service connection for a neck condition, service connection for mini strokes and service connection for a stomach condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 3. New and material evidence has been received to reopen the claim of service connection for a neck condition. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 4. New and material evidence has been received to reopen the claim of service connection for mini strokes. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 5. New and material evidence has been received to reopen the claim of service connection for a stomach condition. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 6. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is in the Veteran’s file. His statements, including his Notice of Disagreement and his hearing testimony, indicate that the ear disability for which service connection is presently sought is tinnitus, and the Board has recharacterized the issue accordingly. New and Material Evidence Claims In a December 2014 rating decision, the RO denied service connection for an ear disability including tinnitus, service connection for mini strokes, service connection for mini strokes, service connection for neck condition, and service connection for a stomach condition. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the December 2014 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § § 3.104, 20.302, 20.1103. For the issue of service connection for tinnitus, the evidence received since that rating decision includes a November 2017 VA audiological examination report and opinion, VA treatment records and a January 2021 Board hearing transcript. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran’s claim, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran’s claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. There is no prejudice to the Veteran in proceeding with adjudication of the merits of the claim as the claim is being granted in full. Hickson v. Shinseki, 23 Vet. App. 394 (2010). For the issues of service connection for a neck condition, service connection for mini strokes and service connection for a stomach condition, the evidence received since that rating decision includes VA treatment records and a January 2021 Board hearing transcript. The Veteran noted that her neck condition was caused her mini strokes. The Veteran also noted that she had an upcoming appointment with a neurologist regarding her mini strokes. The Veteran stated that she had recently received treatment for her stomach condition. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran’s claims, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran’s claims for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The claims will be further addressed in the REMAND section of this decision. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral tinnitus, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The Veteran seeks service connection for tinnitus. The Veteran has noted that she experiences sounds in her ear, similar to drums beating. See Statements dated in October 2008 and February 2017. The Veteran has also stated that she was stationed near a missile range, and that she could not hear while on the phone. She noted that she would experience “static and a loud drum noise” in her ears. See Statement dated in September 2009. At the January 2021 hearing, she reported that she experienced thumbing in her ear and that she could not hear very well. Service treatment records show a December 1965 VA health record that notes that the Veteran complained of a “stuffy sensation” in her left ear. Post service treatment records reflect an October 2008 VA medical note which indicates that the Veteran reported intermittent, bilateral “roaring” tinnitus. The Veteran also reported a constant earache. In service noise exposure was reported. A March 2011 VA audiological examination report shows that the Veteran reported hearing a rushing sound in her left ear. The condition was noted as recurrent. A November 2017 VA audiological examination report shows that the Veteran reported an intermittent pulsatile roaring tinnitus condition that worsened with the fall season. She stated that she first noticed this in the late 1960’s. The VA examiner opined that it was less likely than not that the current tinnitus was a result of hazardous noise in service. The VA examiner stated that the Veteran had a military operations specialty of Administrative Specialist which had a low probability of noise exposure. The Veteran reported exposure to noise from a nearby missile range. The distance to this range was unknown. The Veteran was also unclear of the exact date of onset of tinnitus, reporting possible onset in the late 1960’s, post military service. The service treatment examination revealed no evidence of report of tinnitus. The VA examiner stated that there was insufficient evidence to support a 50 percent probability that the tinnitus occurred as a result of in-service noise exposure. In consideration of the evidence of record, it appears that the evidence is at least in equipoise. Tinnitus is a condition where lay observation can be competent as to the presence of the disability. See Charles v. Principi, 16 Vet. App. 370 (2002). While the November 2017 examination report concluded that the Veteran’s tinnitus was not related to service, the Veteran has stated that her claimed tinnitus began in service. A veteran is competent to report that which he can perceive through her senses, including in-service noise exposure and issues with her hearing. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. As there is competent evidence both in favor of and against the claim, the Board is of the opinion that equipoise has been attained. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). As such, after resolving all reasonable doubt in the Veteran’s favor, service connection is warranted for tinnitus. The claim is granted. REASONS FOR REMAND Entitlement to service connection for a neck condition, to include as secondary to mini strokes, entitlement to service connection for mini strokes, and entitlement to service connection for a stomach condition are remanded. Regarding the issues for a neck condition and mini strokes, at the Veteran’s January 2021 Board hearing, she noted falling while in service. She noted that she could not walk correctly. The Veteran also stated that the mini strokes caused the stiffness in her neck. She stated that she experienced a stiff neck when she talked. Of note, the Veteran noted that she had an upcoming appointment with a neurologist, in three weeks. These medical records have not been associated with the Veteran’s claims file. As such, the RO should make an attempt to obtain the medical records regarding treatment of the Veteran’s claimed mini strokes, to include records from the neurologist. It is unclear if the neurologist is a private doctor or VA medical profession. If a private doctor, the RO should secure any necessary authorization. All outstanding VA medical records should also be obtained. Regarding the issue for a stomach condition, at the Veteran’s January 2021 Board hearing, she noted that she was receiving treatment for stomach problems. She stated that she was going to a hospital in Memphis. A review of the record does not show that medical records for the Veteran’s condition have been associated with the claims file. As such, a remand is necessary to obtain the records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for her claimed conditions, to include the neurologist seen after the January 2021 Board hearing and the Memphis hospital treating her stomach condition. After the Veteran has signed any appropriate releases for private medical records, any relevant records identified that are not duplicates of those already contained in the claims folder should be requested. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Obtain outstanding VA treatment records, to include records from June 2019. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.