Citation Nr: 1109986 Decision Date: 03/14/11 Archive Date: 03/24/11 DOCKET NO. 10-00 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant or Claimant) ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, in pertinent part, denied the claim currently on appeal. In June 2010, the Veteran testified at a hearing before the Board via videoconferencing, with the Veteran seated at the RO and the undersigned Acting Veterans Law Judge seated in Washington, DC. A transcript was procured and is of record. At the June 2010 Board personal hearing, the undersigned Acting Veterans Law Judge advised the Veteran that he would hold the record open for 60 days to allow the Veteran to submit new evidence. In July 2010, the Veteran submitted new evidence in compliance with the Acting Veterans Law Judge's instructions. FINDINGS OF FACT 1. In a December 2005 rating determination, the RO denied service connection for tinnitus; the Veteran was notified of this decision in December 2005, and did not appeal. 2. Evidence received since the December 2005 rating decision denying service connection for tinnitus raises a reasonable possibility of substantiating the claim. 3. The Veteran experienced severe in-service noise exposure. 4. The Veteran experienced chronic tinnitus symptomatology during service. 5. The Veteran has experienced continuous tinnitus sympomatology since service. 6. The Veteran has been diagnosed with tinnitus. 7. The Veteran's tinnitus is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The December 2005 rating decision denying service connection for tinnitus became final. 38 U.S.C.A. § 7105 (c) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.302, 20.1103 (2010). 2. Evidence received since the December 2005 rating decision denying service connection for tinnitus is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). 3. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Because this decision constitutes full grants of the claim for reopening service connection for tinnitus and the underlying claim of service connection for tinnitus, there is no reason to discuss how VA has satisfied the VCAA. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 C.F.R. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the claim. In a December 2005 rating decision, the RO denied service connection for tinnitus, finding that the evidence did not show a clinical diagnosis for tinnitus and, therefore, that the Veteran did not have a current tinnitus disability. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2010). Reviewing the evidence submitted since the December 2005 rating decision, in a July 2010 letter, a private examiner noted treating the Veteran for tinnitus. Credibility of submitted evidence is presumed for purposes of reopening a claim. Therefore, the July 2010 private examiner's letter provides evidence that the Veteran has a current diagnosis of tinnitus. Therefore, the Board finds that the evidence received since the December 2005 rating decision regarding the Veteran's hypertension is new and material, as it relates to an unestablished fact, specifically the clinical acknowledgment of a tinnitus disorder, and raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material, and the claim for service connection for tinnitus will be reopened. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 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). To establish service connection, generally, there must be (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Service Connection for Tinnitus The Veteran essentially contends that he developed tinnitus due to in-service exposure to acoustic trauma. Having considered all the evidence of record, lay and medical, in light of the regulations noted above, the Board finds that service connection is warranted for tinnitus. The Board finds that the Veteran experienced severe noise exposure during service. Specifically, the Veteran's service personnel records indicate that his military occupational specialty (MOS) was that of a tank gunner. During the June 2010 Board personal hearing, the Veteran presented credible testimony indicating that he was exposed to weaponry fire during basic training as well as noise from tanks while stationed in Germany. (The Board notes that service connection for the separate disability of hearing loss was granted based on VA's finding of loud noise exposure in service.) Considering this evidence, the Board finds that the Veteran experienced in-service acoustic trauma. The Board finds that the weight of the evidence demonstrates that the Veteran experienced chronic tinnitus symptomatology during service. At the June 2010 Board personal hearing, the Veteran testified that he first experienced tinnitus, described as ringing in the ears, during service due to the above noted in-service acoustic trauma. He indicated that the ringing in his ears was continuous throughout service. Considering the recognized acoustic trauma and the Veteran's account of its in-service effects, the Board finds that the Veteran has presented competent and credible testimony indicating chronic tinnitus symptomatology during service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); see also Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds that the weight of the evidence demonstrates that the Veteran experienced continuous tinnitus symptomatology since service. In an October 2009 VA medical examination report, the Veteran reportedly stated that he was not sure when his tinnitus started. By contrast, at the June 2010 Board personal hearing, the Veteran testified that the October 2009 VA medical examiner misheard him when he described the history of his tinnitus symptomatology. Specifically, at the personal hearing, the Veteran stated that he had experienced ringing in his ears both before service and ever since service. The Board notes that tinnitus is largely subjective, being difficult to detect on objective testing. Therefore, the Veteran's testimony, being consistent with the recognized history of exposure to acoustic trauma, must be given some weight in this instance. Furthermore, the Board notes that, when the Veteran filed his first claim for service connection, in December 2004, he sought service connection for tinnitus. Having reviewed the claims file, the Board finds the evidence to be in relative equipoise as to whether the Veteran has experienced continuous tinnitus symptomatology since service. Therefore, resolving doubt on this question in the Veteran's favor, the Board finds that the Veteran has experienced continuous tinnitus symptomatology since service. The Board notes that the Veteran has been diagnosed with tinnitus. Specifically, in a July 2010 letter, a private examiner indicated treating the Veteran for tinnitus. Finally, the Board finds that the Veteran's current tinnitus disorder is related to in-service acoustic trauma. In the October 2009 VA medical examination report, the VA examine wrote that the Veteran's tinnitus would come and go. Specifically, the Veteran reported indicated that the symptoms would be alleviated if he lay down for a while. After reviewing this evidence, the VA examiner stated that the Veteran's tinnitus was not related to service. In explaining these findings, the VA examiner noted the Veteran's description of symptoms, indicating waxing and waning of the ringing in the ears and the fact that the disorder was alleviated by rest. At the July 2010 Board personal hearing, the Veteran testified that the October 2009 VA examiner misinterpreted his remarks regarding his tinnitus symptomatology. The Veteran stated that the ringing in his ears was always present even when lying down, although the ringing would be louder or softer at times. He testified that he had to keep his television running all day in order to drown out the ringing in his ears. (Hearing Transcript, pages 4-5). In a July 2010 letter, a private examiner stated that he had treated the Veteran for his bilateral hearing loss and tinnitus disorders. He noted that the Veteran was exposed to acoustic trauma during service and that acoustic trauma could result in bilateral hearing loss and tinnitus. The examiner stated that, in his opinion, it was possible that it was at least as likely as not that the Veteran's tinnitus was related to service. The Board notes that that both medical opinions included in the claims file are of minimal probative value. In the first instance, the October 2009 VA examiner stated that the Veteran's tinnitus was not related to service as it would be alleviated by rest. However, the Board notes that the Veteran has presented testimony indicating that the October 2009 VA examiner misinterpreted his remarks. The Veteran then submitted testimonial evidence indicating that his tinnitus was constant even if the severity would increase or decrease. As the tinnitus is a subjective condition whose effects may be described by the Veteran, the Board is willing to give the Veteran the benefit of a doubt and find his description of tinnitus symptomatology to be credible. Regarding the opinion contained in the July 2010 letter, the Board notes that the private examiner stated that it was "possible" that the Veteran's tinnitus was at least as likely as not related to service. 38 C.F.R. § 3.102 provides that service connection may not be based on a resort to speculation or even remote possibility, and a number of Court cases have provided additional guidance as to this aspect of weighing medical opinion evidence. See, e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the Veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence, which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). However, in this instance, when the opinion is read in context, the VA examiner apparently attempted to say that the Veteran's tinnitus was at least as likely as not related to service. Therefore, as both opinions are inartfully worded, the Board finds that the evidence regarding the tinnitus disorder's relation to service is in equipoise. Therefore, resolving reasonable doubt on this question in the Veteran's favor, the Board finds that that the Veteran's tinnitus is at least as likely as not related to service. Considering that the Veteran has presented credible evidence of in-service severe noise exposure, chronic tinnitus symptomatology during service, continuous symptomatology since service, and currently has a diagnosed tinnitus disorder that has been related by medical opinion to noise exposure during service, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs