Citation Nr: 23022650 Decision Date: 04/18/23 Archive Date: 04/18/23 DOCKET NO. 19-12 079 DATE: April 18, 2023 ORDER A timely Notice of Disagreement (NOD) to the July 2013 rating decision was not received; to that extent, the appeal is denied. Service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for a cervical spine disorder, to include degenerative disc disease (DDD) and degenerative joint disease (DJD), is remanded. Entitlement to service connection for a bilateral foot disorder, to include calluses on the feet, is remanded. Entitlement to service connection for a breast disorder, to include invasive carcinoma, is remanded. ? FINDINGS OF FACT 1. On July 13, 2013, the Veteran was notified of the July 2013 rating decision. 2. An NOD with the July 2013 rating decision was received by VA on July 28, 2014, which is not within one year of the date of notice of the determination by the Regional Office (RO). 3. Resolving any reasonable doubt in her favor, the evidence is in approximate balance as to whether the Veteran's tinnitus had its onset in active service as it demonstrates that she was exposed to hazardous noise as a result of her military occupational specialty (MOS) and has competently and credibly reported constant ringing in her ears since service. CONCLUSIONS OF LAW 1. A timely NOD was not received with respect to the July 2013 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.101, 20.202, 20.302 (2011). 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1996 to December 1999. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2018 rating decision of a Department of Veterans Affairs (VA) RO, as well as the June 2015 decision that the July 2014 VA Form 9 could not be accepted as a timely NOD. The Veteran requested a videoconference hearing in her March 2019 and March 2020 VA Forms 9, which was held in April 2022 before the undersigned Veterans Law Judge (VLJ). The Board notes that VA treatment records were associated with the claims file after the Statement of the Case (SOC) was issued in January 2020. As such, they were not reviewed by the RO, and the Veteran did not submit a waiver of RO review. Although these records are relevant as they include treatment records for almost all of the issues currently on appeal, they will be reviewed and considered upon remand when the issues are readjudicated by the Agency of Original Jurisdiction (AOJ). Additionally, the Veteran is not prejudiced by the adjudication of the service connection claim for tinnitus as it is granted herein. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Timely Notice of Disagreement Under the provisions of 38 U.S.C. § 7105, an appeal to the Board must be initiated by an NOD and completed by a substantive appeal after an SOC is furnished to the appellant. In essence, the following sequence is required: (1) there must be a decision by the AOJ; (2) the appellant must express timely disagreement with the decision; (3) VA must respond by explaining the basis of the decision to the appellant; and (4) the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely filed substantive appeal. See 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202, 20.302 (2011). To be considered timely, the NOD must be filed within one year of the date of mailing of the notification of the adverse decision. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302 (2011). Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). The filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a NOD, as provided in 38 C.F.R. § 20.302(a). Under the regulations in effect in 2011, when a rule requires that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305(a) (2011). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b) (2011). The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. The decision as to the timeliness and adequacy of an NOD will be made by the Board. 38 U.S.C. § 7108; 38 C.F.R. § 20.101(c), (d) (2011). The Veteran's service connection claims for a skin disorder, glass or metal in the right foot, a back disorder, and right and left knee disorders were initially denied in a July 2013 rating decision, which was mailed to the Veteran with a notification letter on July 13, 2013. The Veteran submitted a VA Form 9 in lieu of an NOD on July 28, 2014. She subsequently received a letter dated June 2015, explaining that the VA Form 9 could not be accepted as a timely NOD. She submitted an NOD in November 2015 regarding the determination as to an untimely NOD, and a January 2019 SOC continued to find that the July 2013 NOD was untimely. The Board finds that the Veteran's July 2014 NOD was untimely. In support of her assertion that the July 2014 VA Form 9 was a timely NOD, the Veteran described signing and submitting the form on July 11, 2014, with her representative. See November 2015 statement. Although the VA Form 9 may have been signed and dated on July 11, 2014, there is no evidence that it was submitted on this date. At her April 2022 Board hearing, she testified that she was told by her representative that the NOD would be faxed on the date it was signed. However, the representative only told her that it was sent off, but did not show a copy of any evidence confirming that it had indeed been faxed. The July 2014 NOD was date-stamped as July 28, 2014, but there is no evidence of a postmark. Even presuming that the postmark date was five days prior, the NOD was still unfortunately received after the 1-year deadline had passed. Therefore, given the lack of evidence confirming submission of the NOD on July 11, 2014, and the lack of personal knowledge of the Veteran regarding whether it had actually been faxed on July 11, 2014, the Board finds that the NOD was not timely as it was not received within one year of notice of the July 2013 rating decision. Pursuant to 38 U.S.C. § 7105(b)(1)(C), questions "as to timeliness or adequacy of the notice of disagreement shall be determined by the Board." See also VAOPGCPREC 9-99, 64 Fed. Reg. 52376 (1999). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the appeal is denied. Service Connection for Tinnitus Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Tinnitus is considered by VA to be an organic disease of the nervous system, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more of active service, and those certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A lay person is competent to report on the onset and reoccurrence of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As an initial matter, the Board finds that the Veteran has a current disability of tinnitus, which is capable of lay observation and diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002); see also August 2017 VA examination report. Next, the Board finds that the Veteran had noise exposure during service, specifically from her MOS as a fueler. Her DD Form 214 confirms that she was a petroleum supply specialist. At her April 2022 Board hearing, she reported in-service exposure to loud noises, specifically when fueling vehicles. The trucks could come in and were not turned off while they were fueled. She was given hearing protection, but they were "no good" as they never stayed in place. Additionally, she testified an onset of tinnitus during service, which was intermittent since 1997 when she was stationed in Germany, for which she went to sick call and was diagnosed with tinnitus. Especially given the Veteran's MOS, the Board finds that she is competent to report in-service noise exposure, and does not doubt the credibility of her statements in that regard. See 38 U.S.C. § 1154(a). The Board notes that the August 2017 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. However, it appears that the negative opinion may be at least partially based on the fact that there is no record of complaint or treatment for tinnitus at separation. Unfortunately, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). In other words, the absence of treatment or symptoms is not necessarily fatal to the claim for service connection. Because the negative opinion is based on a lack of documentation, the opinion is inadequate. Regardless, the Board finds that the evidence currently of record is at least in approximate (meaning nearly equal) balance of positive and negative evidence regarding the onset and etiology of her tinnitus. Although the Board acknowledges the Veteran's report of tinnitus beginning around 2004 at her August 2017 VA examination, she testified at her hearing that it began in 1997 intermittently and had continued since then. Accordingly, the evidence is at least approximately balanced that the current tinnitus was incurred in service and has been chronic and continuous since that time. Accordingly, service connection for tinnitus is warranted at this time based on the evidence of record. See 38 C.F.R. § 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND A July 2012 formal finding on the unavailability of service records reflects that service treatment records (STRs) were unavailable despite all procedures being correctly followed. While some STRs and photocopies of STRs were subsequently associated with the claims file and a December 2017 response to a Request for Information noted that miscellaneous personnel and medical documents were found and associated with the claims file, it is not clear whether the complete STRs and personnel files had been obtained and associated with the claims file. Therefore, such should be confirmed. If not, they should be obtained and associated with the claims file. Cervical Spine Disorder The evidence reflects a current diagnosis of cervical spine DDD and DJD. See September 2017 VA examination report. The Veteran contends that her cervical spine disorder was related to an in-service motor vehicle accident (MVA) in 1998 while in Germany. See April 2022 Board hearing transcript. She was in a neck brace and received physical therapy. A May 1998 letter from an Army Chief Nurse confirmed that the Veteran was receiving physical therapy at a local Germany facility, although the exact reason for the physical therapy was not provided. As an initial matter, the Board notes that there does not appear to be any treatment records from any German facility associated with the claims file. Therefore, the AOJ should make efforts to obtain and associate such treatment records with the claims file. Additionally, although the Veteran was provided a VA examination in September 2017, the examiner did not provide an opinion regarding etiology. Accordingly, a new VA examination is warranted in order to more completely and adequately evaluate the nature and etiology of the Veteran's claimed cervical spine disorder. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Bilateral Foot Disorder A remand is necessary to provide a VA compensation examination. The evidence reflects that the Veteran was previously diagnosed with pes planus of the right foot and mild Achilles enthesophyte, hammertoe deformities on the second through the fourth toes, and a small heel spur bilaterally. See June 20, 2013, Reserve STRs. She testified at her hearing that she currently had calluses on her feet as well as pes planus and a bone spur. Although STRs do not reflect any complaint, treatment, or diagnosis of the feet specifically during active duty service, the Veteran testified at her April 2022 Board hearing that she was wearing tennis shoes when a piece of metal went through her right foot in 1998 while stationed in Germany. She sought medical treatment, had it removed, and got stitches. She testified that she walked off-gait due to pain despite the complete removal of the metal. She reported that she had always had issues with her feet since stepping on the metal. At the April 2022 Board hearing, she contended that her bilateral foot disorder was due to the in-service injury where she stepped on a piece of metal. She also contended that it was caused by wearing boots during service. Additionally, she asserted that using solvents and cleaning and exposure to fuel caused problems with the calluses. As the evidence reflects a report of a current disorder, as well as the Veteran's competent reports of an in-service injury and in-service exposure as part of her MOS and symptoms, a VA examination is indicated. See McLendon, 20 Vet. App. at 83. As she has not yet been afforded a VA examination to address the nature and etiology of her bilateral foot disorder, this should be accomplished on remand. Breast Disorder The Veteran testified at the April 2022 Board hearing that she sought medical treatment during service at which time she was sent to a private German hospital in Schweinfurt. She also reported being treated at Tuomey Hospital and Mcintosh. As noted above, the AOJ upon remand will make efforts to obtain complete STRs. Additionally, the AOJ should attempt to obtain and associate with he claims file other treatment records from medical providers reported by the Veteran. Additionally, the evidence reflects a current diagnosis of fibrocystic breast disease and invasive carcinoma of the left breast. See January 2021 VA examination report. The Veteran contends that her breast cancer started in 1997 during service when she felt extreme sharp pain in her right breast and was diagnosed with fibrocystic disease. Unfortunately, no opinion was provided regarding etiology. Accordingly, a new VA examination is warranted in order to more completely and adequately evaluate the nature and etiology of the Veteran's claimed breast disorder. See 38 U.S.C. § 5103A(d); McLendon, supra The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's complete STRs and personnel files, including from Hunter Army Airfield and during her period of National Guard service. ? 2. Obtain and associate updated relevant VA treatment records to the claims file. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. Make reasonable attempts to obtain updated relevant private treatment records, specifically from the private German hospital in Schweinfurt where she was treated in or around 1997, Tuomey Hospital, Mcintosh Clinic, and her Tricare records related to the Veteran's claims. Provide the Veteran with the requisite authorization/consent forms on which she should identify all private treatment she has received. Any and all records should be uploaded to the electronic file. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 4. Schedule the Veteran for a VA examination with an appropriate qualified examiner to determine the nature and etiology of his claimed cervical spine disorder, to include DJD and DDD. The claims file, and a copy of this remand, will be available to the examiner. All tests deemed necessary should be performed and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should confirm any and all cervical spine disorders, including DJD and DDD, present during the appeal period, regardless of whether such may have resolved prior to the present examination. Thereafter, the examiner should opine whether any cervical spine disorder found either began during service, within one year of discharge therefrom, or is otherwise the result of military service. In so addressing this, the examiner must consider and address any statements regarding onset of symptomatology and any statements regarding continuity of symptomatology since onset and/or since discharge from military service. In addressing this aspect, the examiner must consider and address: (1) the May 1998 letter from an Army Chief Nurse verifying that the Veteran was receiving physical therapy at a local German facility, (2) the Veteran's contention that her cervical spine disorder was related to service as she was in a MVA in 1998 while in Germany, and (3) her report of cervical pain since her in-service injury. The examiner should provide a well-reasoned, medical explanation for accepting or rejecting these various accounts of onset of symptoms and any statements regarding continuity of symptomatology since service. A complete rationale should be provided for each opinion provided. 5. Schedule the Veteran for a VA examination with an appropriate qualified examiner to determine the nature and etiology of her claimed bilateral foot disorder, to include calluses on the feet. The claims file, and a copy of this remand, will be available to the examiner. All tests deemed necessary should be performed and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should confirm any and all foot disorders, including pes planus, calluses, hammertoes, and heel or bone spurs, present during the appeal period, regardless of whether such may have resolved prior to the present examination. Thereafter, the examiner should opine whether any foot disorder found either began during service, or is otherwise the result of military service, INCLUDING wearing boots, exposure to solvents and fuel, and the reported in-service injury where a piece of metal went through her shoe into her right foot. In so addressing this, the examiner must consider and address any statements regarding onset of symptomatology and any statements regarding continuity of symptomatology since onset and/or since discharge from military service. Additionally, the examiner must consider and address: (1) the June 2013 x-rays revealing mild pes planus on the right foot and hammertoe deformities and heel spurs bilaterally, (2) an October 2020 VA treatment record reflecting gait deviations, and (3) an April 2022 Board hearing transcript reflecting the Veteran's competent description of an in-service injury where a piece of metal went through her foot in 1998, resulting in continued issues since. The examiner should provide a well-reasoned, medical explanation for accepting or rejecting these various accounts of onset of symptoms and any statements regarding continuity of symptomatology since service. A complete rationale should be provided for each opinion provided. ? 6. Schedule the Veteran for a VA examination with an appropriate qualified examiner to determine the nature and etiology of her claimed breast disorder, to include fibrocystic breast disease and invasive carcinoma. The claims file, and a copy of this remand, will be available to the examiner. All tests deemed necessary should be performed and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should confirm any and all breast disorders, including fibrocystic breast disease and invasive carcinoma, present during the appeal period, regardless of whether such may have resolved prior to the present examination. Thereafter, the examiner should opine whether any breast disorder found either began during service, or is otherwise the result of military service, INCLUDING sharp pain, tenderness, lumpiness, soreness, swelling, and clear discharge in her right breast in 1997; prolonged exposure to fuel related to her MOS; and exposure to other substances that were on the exterior of the tanks and other vehicles that were returning from Desert Storm. In so addressing this, the examiner must consider and address any statements regarding onset of symptomatology and any statements regarding continuity of symptomatology since onset and/or since discharge from military service. Additionally, the examiner must consider and address: (1) the Veteran's report of an onset of a breast disorder in 1997 while in Germany (see January 2021 VA examination report); (2) her description of a cycle of finding lumps, having biopsies, and/or having them removed since around 1996 and 1997 (see April 2022 Board hearing transcript); and (3) her contention that her breast cancer was caused by either exposure to the fuel or the vehicles that came back from being exposed to something while deployed. The examiner should provide a well-reasoned, medical explanation for accepting or rejecting these various accounts of onset of symptoms and any statements regarding continuity of symptomatology since service. A complete rationale should be provided for each opinion provided. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Jane R. 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.