Citation Nr: 21023088 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-16 508 DATE: April 20, 2021 ORDER 1. The application to reopen the previously denied claim for service connection for tinnitus is granted. REMANDED 2. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In an unappealed January 2010 rating decision, the RO denied the service connection claim for tinnitus. 2. The evidence received since the January 2010 rating decision relates to an unestablished fact necessary to substantiate the service connection claim for tinnitus. CONCLUSIONS OF LAW 1. The January 2010 rating decision that denied service connection claim for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103. 2. The additional evidence received since the January 2010 rating decision is new and material, and the service connection claim for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from November 1981 to November 1985. This matter comes to the Board following a February 2016 statement of the case and a February 2017 supplemental statement of the case issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a VA Form 9, Appeal to the Board, in March 2016 and the matter now comes to the Board for further review. 1. The petition to reopen the previously denied claim for service connection for tinnitus Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 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.” Shade v. Shinseki, 24 Vet. App. 110, 117–20 (2010). The claim for service connection for tinnitus was initially denied in a January 2010 rating decision. In April 2014, the Veteran filed an application to reopen the claim for service connection for tinnitus, which was denied in a July 2014 rating decision due to a finding of no new and material evidence being submitted. In an April 2015 claim filing, the Veteran requested reopening, but was again denied in a September 2015 rating decision that again stated there was no new and material evidence to reopen the claim. The Veteran filed a notice of disagreement in October 2015 and the RO issued a statement of the case in February 2016, which stated there was no new and material evidence to reopen the claim. The Veteran filed a Form 9 in March 2016. A supplemental statement of the case was issued February 2017, which again stated there was no new and material evidence to reopen the claim. In the January 2010 rating decision, the RO denied service connection for tinnitus. The rating decision referred to the findings of the January 2010 VA examiner that found tinnitus neither occurred in, nor was caused by service. The rating decision cited the reasoning used by the January 2010 VA examiner for forming a negative opinion for service connection for tinnitus. Notably, the January 2010 VA examiner and January 2010 rating decision stated the Veteran’s description of tinnitus episodes lasting less than one minute did not fit the accepted definition of clinically significant tinnitus. Additionally, they stated research and publications do not support claims of delayed onset tinnitus or the presence of tinnitus accompanying normal hearing as evidenced by audiogram at the time of discharge. Since the January 2010 rating decision, additional VA treatment records from February 2016 and March 2016 have been added to the record that noted the Veteran reported he experienced tinnitus for a week straight at one point. Additionally, the Veteran submitted treatise evidence that discussed tinnitus in individuals even with no or minor hearing impairment. The Board finds this evidence is new and material, as it relates to two of the reasons for the January 2010 denial of service connection for tinnitus and raises a reasonable possibility of substantiating the claim. Accordingly, the claim for service connection for tinnitus is reopened. The reopened claim for service connection for tinnitus is addressed in the remand section, as the Board finds additional development is warranted, which development is described below. REASONS FOR REMAND 2. Entitlement to service connection for tinnitus is remanded. The Board finds a remand is necessary for additional development prior to deciding the claim. The most recent VA medical opinion is from January 2010 and it does not account for later VA treatment records. Notably, in February 2016 and March 2016 VA treatment records, the Veteran reported he experienced tinnitus for a week straight at one point. The January 2010 rating decision that denied service connection for tinnitus relied heavily on the reasoning of a January 2010 VA examiner. Among other reasons, the VA examiner stated the Veteran’s description of his tinnitus episodes lasting less than one minute did not fit accepted definition of clinically significant tinnitus. Thus, the February 2016 and March 2016 report by the Veteran that he experienced tinnitus for a week straight must be reconciled by a VA examiner. Additionally, the January 2010 rating decision and VA examination report stated research and publications did not support claims of delayed onset tinnitus or the presence of tinnitus accompanying normal hearing as evidenced by audiogram at the time of discharge. However, the Veteran submitted treatise evidence that discussed tinnitus in individuals even with no or minor hearing impairment. Additionally, the Veteran reported he felt his tinnitus started when he was exposed to noises in service. Therefore, a VA examiner must also review the treatise evidence submitted by the Veteran and the Veteran’s own statements. The matters are REMANDED for the following action: 1. Refer the Veteran’s file to an appropriate examiner for an addendum opinion to the January 2010 VA examination. The agency of original jurisdiction is asked to provide the examiner a copy of the below facts. If the examiner finds that an in-person examination is warranted, then schedule an examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • The Veteran served in the Army from November 1981 to November 1985. • The November 1981 Report of Medical Examination shows that clinical evaluation of the ears was normal. On the second page of that document, it shows audiometer findings. See VBMS entry with document type, “STR – Medical,” receipt date 05/07/2014, pp. 10-11. • A March 1985 audiogram showed testing results. See VBMS entry with the document type, “STR – Medical,” receipt date 05/07/2014, at p. 16. • The September 1985 Report of Medical Examination near service discharge shows that clinical evaluation of the ears was normal. On the second page of that document, it shows audiometer findings. See VBMS entry with document type, “STR – Medical,” receipt date 06/02/2015, at pp. 11-12. • In a September 1985 Report of Medical History, the Veteran documented a positive history of ear, nose, or throat trouble and denied a history of hearing loss. On the second page of the document, the positive history of ear trouble was documented to have involved ear infections. See VBMS entry with document type, “STR – Medical,” receipt date 06/02/2015, at pp. 12-13 (items 11 & 25). • An October 2006 VA treatment record shows that when performing a review of systems, the Veteran denied tinnitus. See VBMS entry with document type, “CAPRI,” receipt date 10/21/2016, at p. 462. • A separate October 2006 VA treatment record documents the Veteran gave a history of decreased hearing for the previous two years or so “without any concomitant symptoms like tinnitus.” See VBMS entry with document type, “CAPRI,” receipt date 10/21/2016, with “#2” in the subject field, at p. 432. • In a November 2009 statement, the Veteran stated he was in the artillery in service working on the gunline. See VBMS entry with document type, “VA 21-4138 Statement In Support of Claim,” receipt date 11/24/2009, at p. 1. • At a January 2010 VA examination, the Veteran reported he was a heavy equipment operator and drove self-propelled cannon and ammunition carrier. He stated hearing protection was worn while engaged in this activity. The Veteran stated he was exposed to canon firing as part of the crew, and again stated he wore hearing protection. The Veteran had no complaint of tinnitus at the time of the examination and he stated the last episode of tinnitus was 1 week prior of buzzing ringing sound possibly greater in the right ear lasting less than one minute. The Veteran reported first becoming aware of tinnitus in 1989. He stated he will experience tinnitus several times a month and each episode will last less than one minute. See VBMS entry with document type, “VA Examination,” receipt date 01/08/2010, at pp. 1-2. • The January 2010 VA examiner concluded tinnitus was not caused by or the result of noise exposure sustained in service. The examiner gave the following reasons for this opinion: (1) the Veteran had "normal" hearing at time of discharge; (2) the Veteran reported onset of tinnitus occurred some 4 years after discharge; (3) the Veteran’s description of his tinnitus episodes lasting less than one minute did not fit the accepted definition of clinically significant tinnitus; and (4) research and publications do not support claims of delayed onset tinnitus, in this case at least four years after last military noise exposure, or the presence of tinnitus accompanying normal hearing as evidenced by audiogram at the time of discharge. See VBMS entry with document type, “VA Examination,” receipt date 01/08/2010, at p. 4. • A February 2011 VA treatment record shows that when performing a review of systems, the examiner wrote that the Veteran had normal hearing. See VBMS entry with document type, “CAPRI,” receipt date 02/10/2017, with “#1” in the subject field, at p. 299. • June 2013 VA treatment records noted the Veteran reported no immediate hearing needs. See VBMS entry with document type, “CAPRI,” receipt date 02/10/2017, with “#1” in the subject field, at p. 50. • In April 2015, the Veteran stated his military occupational specialty (MOS) was as a Cannon Crew man and it was during these training exercises that he was exposed to loud noise. He felt this is where his tinnitus started. See VBMS entry with document type, “VA 21-4138 Statement In Support of Claim,” receipt date 04/06/2015, at p. 1. • In February 2016 VA treatment records, the Veteran reported several months of history of intermittent tinnitus that was sometimes left- and sometimes right-sided. He noticed about 4 days of constant tinnitus in the previous month. The Veteran admitted to loud noise exposure as an M548 driver in the service and admitted to having to listen to the TV loudly at home. The Veteran denied medication changes at the time of onset of tinnitus. The physician assistant (PA) that treated the Veteran stated the most likely cause of tinnitus is hearing loss with other possibilities including medications or stress/anxiety. The PA noted the Veteran is on medications that may cause tinnitus to include HCTZ, ASA, and psychiatric. See VBMS entry with document type, “CAPRI,” receipt date 02/10/2017, with “#2” in the subject field, at pp. 299-301. • March 2016 VA treatment records noted intermittent bilateral tinnitus, reported constant tinnitus for approximately a week straight a few months prior, and this had since subsided. The Veteran was also noted to have suffered a head injury from a car accident in the 1990s. See VBMS entry with document type, “CAPRI,” receipt date 02/10/2017, with “#2” in the subject field, at pp. 274-276. • In December 2020, the Veteran submitted evidence from 3 treatises, which, among other issues, discussed tinnitus in individuals even with no or minor hearing impairment. See VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 12/18/2020, at pp. 1-25. • 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. Following a review of the evidence, the examiner is asked to answer the following questions: 1. Does the Veteran’s description of his tinnitus episodes from the February and March 2016 VA treatment records fit the accepted definition of clinically significant tinnitus? Notably, in February 2016 VA treatment records, the Veteran reported several months of history of intermittent tinnitus that was sometimes left- and sometimes right-sided. He noticed about 4 days of constant tinnitus in the previous month. Additionally, in the March 2016 the Veteran reported constant tinnitus for approximately a week straight a few months prior that had since subsided. 2. Does the treatise evidence submitted by the Veteran and/or statements given by the Veteran support claims of delayed onset tinnitus or the presence of tinnitus accompanying normal hearing as evidenced by audiogram at the time of discharge? 3. Is it at least as likely as not (50 percent or greater probability) that the Veteran has tinnitus that is related to noise exposure from service from November 1981 to November 1985? 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 K. Patton 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.