Citation Nr: 0910042 Decision Date: 03/18/09 Archive Date: 03/26/09 DOCKET NO. 07-13 533A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been presented to reopen a service connection claim for tinnitus, and if so may such claim be granted. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence Griffin, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to May 1967 and from September 1967 to December 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2005 by the Department of Veteran Affairs (VA) Montgomery, Alabama Regional Office (RO). FINDINGS OF FACT 1. A March 2003 rating decision denied service connection for tinnitus because there was no evidence of a nexus between the Veteran's tinnitus diagnosis and his military service. 2. Evidence added to the record since the March 2003 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for tinnitus, and raises a reasonable possibility of substantiating that claim. 3. The evidence is in equipoise as to whether tinnitus had its onset in service. CONCLUSION OF LAW 1. Evidence added to the record since the March 2003 rating decision denying the Veteran's application for service connection for tinnitus is new and material and his claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). 2. Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred in service 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159, set out VA's notice and duty to assist requirements upon receipt of a claim for benefits. Since the claim is being granted, a discussion of VA's notice and assistance obligations is unnecessary. New & Material Evidence A March 2003 rating decision denied the Veteran's service connection claim for tinnitus, finding there was no evidence linking the Veteran's current diagnosis of tinnitus and his military service. In making this decision, the RO considered the Veteran's service treatment records, private treatment records dated between December 1997 through September 2000 and various internet articles submitted by the Veteran to support his claim. Ultimately, the decision became final, after the Veteran failed to appeal the decision within the prescribed time. 38 U.S.C.A. § 7105 (West 2002). In order to reopen the claim, the appellant must present or secure new and material evidence with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). For evidence to be new and material, it must be: ...existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when 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. 38 C.F.R. § 3.156(a). Various pieces of evidence have been added to the record since the March 2003 rating decision. Of particular relevance is a February 2006 private audiological opinion, which indicates the Veteran's hearing loss "is more likely than not, caused by...noise related trauma during [the Veteran's military] service time." As well, is a medical article reflecting that it may be concluded that noise doses associated with hearing loss are likely to be associated with tinnitus. This raises the possibility that the Veteran's tinnitus may be related to his military service. At the time of the March 2003 rating decision, the RO concluded that no nexus had been had been shown between the Veteran's in service noise exposure and his current tinnitus. The Veteran has now presented evidence related to this previously unestablished necessary element of his claim. Specifically, he has presented evidence which provides support for his contention that his tinnitus is related to his military service. The Board finds the newly submitted documents to be new and material evidence, within the meaning of 38 C.F.R. § 3.156(a) and the claim for service connection is reopened. Service Connection Claim for Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1131. 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). The Veteran served on active duty from January 1967 to May 1967 and from September 1967 to December 1968. During service, his military occupational specialty was that of a Radio Operator. His service record does not reflect complaints of tinnitus or any ear related treatment, although his account of his noise exposure at his communications stations processing naval radio transmissions is considered accurate. Likewise, his account of the onset of tinnitus in service and its gradual progression is considered credible. The first evidence of tinnitus did not appear until many years after the Veteran's separation from service. The medical evidence of record suggests the veteran first sought treatment for tinnitus in September 1998. Additionally, a September 2000 private treatment note documents the Veteran's follow-up treatment for tinnitus at the same treating facility; however, none of these records indicate the Veteran's tinnitus is related to military noise exposure. A September 2004 private audiological examination that is of record, also fails to relate the Veteran's tinnitus condition to his military service, but a February 2006 private audiological opinion offers that the Veteran's "hearing loss is consistent with noise exposure and is more likely than not, caused by noise related trauma during service." However, the private audiologist failed to comment on whether the Veteran's tinnitus may be related to service. The veteran did, however, submit an accumulation of medical articles relating to military noise induced hearing loss and tinnitus. In pertinent part, these contained the comment that noise levels associated with hearing loss are also likely to be associated with tinnitus. Given the medical conclusion that the veteran's hearing loss was a service related noise induced event, it may be reasonably concluded that his tinnitus was likewise so induced. This would be consistent with the veteran's description of its onset. Similarly, although a November 2006 VA examiner thought it less likely than not the veteran's tinnitus was related to military noise exposure, she allowed how it may have contributed to it. Under these circumstances, the evidence may be deemed in equipoise on the question of whether tinnitus had its onset in service. Resolving the equally balanced evidence in favor of the veteran, permits an award of service connection. ORDER New and material evidence has been presented to reopen a claim for service connection for tinnitus, and service connection for tinnitus is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs