Citation Nr: 21030580 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-28 758 DATE: May 19, 2021 ORDER New and material evidence having been received, the reopening of the claim of entitlement to service connection for a psychiatric disability secondary to a service-connected scar is granted. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a psychiatric disability secondary to a service-connected scar is remanded. FINDINGS OF FACT 1. A February 2014 rating decision denied service connection for entitlement to service connection for a psychiatric disability secondary to a service-connected scar; the Veteran and his representative were properly notified, and no response or additional evidence was received within one year of the notice. 2. The evidence received since the February 2014 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a psychiatric disability. 3. The Veteran does not have a current diagnosis for tinnitus. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a psychiatric disability secondary to a service-connected scar are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence having been received, the reopening of the claim of entitlement to service connection for a psychiatric disability secondary to a service-connected scar is granted. In a February 2014 rating decision, the RO denied service connection for a psychiatric disability. The Veteran was notified of the February 2014 rating decision and his procedural and appellate rights in February 2014 at his address of record. His representative was copied on the notice. He did not file a notice of disagreement within one year of notice of the February 2014 rating decision. No additional evidence was received within one year of notice of the February 2014 rating decision. For this reason, the February 2014 rating decision denial of service connection for a psychiatric disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Additional evidence was added to the claims file and the Veteran filed a claim to reopen the issue of entitlement to service connection for a psychiatric disability secondary to a service-connected scar. In November 2016 and June 2017, the RO issued decisions denying the reopening of the claim as the evidence received was not new and material. The Veteran did not perfect an appeal of those decisions to the Board, so the decisions became final. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. Evidence received since the prior final decision includes VA treatment records indicating that the Veteran repeatedly reported that he heard voices telling him that his scars made him ugly and that people make fun of him because of his scars, as well as a December 2018 VA examination addressing the Veteran's claim that his psychiatric disability is related to this service-connected scar. The August 2016 denial was on the basis that there was not a temporal association between the Veteran's nose injury in April 1970 and the symptomatology of his psychiatric diagnosis. The VA treatment records and December 2018 VA examination are new to the file, competent, address the grounds of the prior final denial, and raise a reasonable possibility of substantiating the service connection for depression claim. The Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for tinnitus is denied. The Veteran contends that she has tinnitus related to her active duty service. The Board finds that the Veteran does not have a current diagnosis for tinnitus and has not had a diagnosis for those disabilities at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The medical evidence of record does not indicate that the Veteran has a current diagnosis for tinnitus. The Veteran attended VA Examinations in December 2018 and July 2019 and denied experiencing symptoms of tinnitus in each VA examination. The Veteran's VA treatment records show that the Veteran repeatedly denied experiencing tinnitus symptoms. Although the Veteran is service connected for hearing loss, and although the Veteran is competent to report symptoms of tinnitus, the evidence of record does not show that the Veteran has a current diagnosis of tinnitus. The Veteran's Service Treatment Records (STRs) did not show treatment for or complaints of tinnitus, and, as discussed above, the Veteran's VA treatment records show that he repeatedly denied having any symptoms of tinnitus. In summary, the Veteran has provided no evidence beyond a bare assertion made in his claim for service connection for tinnitus. In light of the foregoing, the preponderance of the evidence is against the existence of a current diagnosis for tinnitus and against a nexus between any potentially extent tinnitus and service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board concludes that the criteria for service connection are not met. 38C.F.R. §3.03. Accordingly, service connection for tinnitus is denied. REASONS FOR REMAND Entitlement to service connection for a psychiatric disability secondary to a service-connected scar is remanded. The Veteran claims that he has a psychiatric disability which is secondary to his service-connected scar. The Veteran last underwent a VA Examination for his psychiatric disability in December 2018. The December 2018 VA examiner opined that the Veteran's psychiatric disability was less likely than not proximately due to or aggravated by the Veteran's service-connected scar but provided an incomplete rationale. The December 2018 VA examiner's rationale was "There is no evidence in the literature of a direct physiological consequence between veteran's service connected [sic] a [sic] schizophrenia." This sentence does not identify the Veteran's service-connected disability, nor does it explain why there is no "physiological consequence" between the Veteran's service-connected disability and his psychiatric disability. The December 2018 VA examiner further opined "Therefore, the link between veteran's neuropsychiatric condition and his sc [sic] cannot be made," which also does not identify the service-connected disability or explain why the Veteran's psychiatric disability is less likely than not proximately due to or aggravated by his service-connected scar disability. As the December 2018 VA examiner's rationale is not adequate to support the opinion provided, the RO should obtain an addendum opinion before this matter can be adjudicated. This matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's psychiatric disability is at least as likely as not proximately due to his service-connected scar or aggravated beyond its natural progression by his service-connected scar. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.