Citation Nr: 1241867 Decision Date: 12/07/12 Archive Date: 12/13/12 DOCKET NO. 10-38 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran also appealed a claim for entitlement to service connection for bilateral hearing loss, but withdrew his appeal in an August 2012 letter submitted by his representative. FINDINGS OF FACT 1. A February 2005 RO decision denied entitlement to service connection for tinnitus; the Veteran did not appeal or submit new and material evidence within one year of the decision. 2. Evidence received since the February 2005 RO decision is new and material, and the Veteran's claim is reopened. 3. The Veteran's tinnitus had onset in service or was caused or aggravated by the Veteran's active service. CONCLUSIONS OF LAW 1. The February 2005 RO decision that denied entitlement to service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. New and material evidence has been received since the February 2005 RO decision, and the Veteran's claim for entitlement to service connection for tinnitus is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. New and Material Evidence The Veteran original claim for entitlement to service connection for tinnitus was denied in a February 2005 RO decision; the Veteran did not appeal or submit new and material evidence within one year of the decision. In December 2009, the Veteran filed new claim for tinnitus, which the RO continued to deny. The Veteran has appealed. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). However, 38 U.S.C.A. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The Board denied the appellant's prior claim because there was no evidence that the Veteran had a diagnosis of tinnitus. Thus, for evidence in this case to be considered new and material, it must show that the Veteran has been diagnosed with tinnitus. The Veteran was afforded a VA examination in September 2010. The VA examiner diagnosed the Veteran with tinnitus. This evidence is new and material. Accordingly, the Veteran's prior claim is reopened. The issue of entitlement to service connection for tinnitus is addressed below. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Service connection may 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) (2012). The Veteran is seeking entitlement to service connection for tinnitus, which he has stated had onset in service and which he attributes to noise exposure in service. He served on active duty in the United States Navy from June 1965 to December 1967, and according to his personnel records, his military occupational specialty (MOS) was BM-0100, boatswain's mate. The Veteran's service included sea service aboard the USS Navarro, which was in the official waters of the Republic of Vietnam in August and September 1967 while the Veteran was serving aboard the vessel. In a July 2004 statement, the Veteran reported that while serving aboard the USS Navarro, he was "constantly exposed to the firing of 40mm anti-aircraft guns" and that he has had a constant ringing in his ears since he was in the military. In his March 2010 notice of disagreement, the Veteran reported that his duties as a boatswain's mate included serving on the gun crew aboard ship, as well as exposure to power tools, such as those used for grinding and shipping the paint on the decks and sides of naval vessels. Each branch of the Armed Services has reviewed and endorsed lists of military occupational specialties and the corresponding probability of hazardous noise exposure related to an individual's occupational specialty. The Duty MOS Noise Exposure Listing is available at: http://vbaw.vba.va.gov/bl/21/rating/docs/dutymosnoise.xls. According to these lists, it is highly probable that a boatswain's mate is exposed to hazardous noise. Accordingly, the Veteran's in-service noise exposure is conceded. However, the Veteran's service treatment records are negative for complaints of tinnitus. The Veteran's only in-service ear complaint is a request in July 1966 to have his ears cleaned because they are "plugged up" and he cannot hear properly. At his separation examination in December 1967, the Veteran was administered a whispered voice test, on which he scored a 15/15 bilaterally. No ear problems are noted on the Report of Medical Examination completed at that time. The Veteran did not complete a Report of Medical History at his separation. Post-service, if the Veteran received any treatment for any ear problems or complained of tinnitus prior to his original claim for tinnitus in July 2004, the Veteran has not reported it and these records are not associated with the claims folder. VA treatment records, as well as private medical records from Wright Memorial Physician's Group, are also negative for complaints of or treatment for tinnitus. In September 2010, the Veteran was afforded a VA audiological examination. At that time, the Veteran again reported that onset of tinnitus during his military service. Post-service, he had occupational noise exposure as the driver of an 18-wheel truck for twenty years. The examiner opined that the Veteran's tinnitus was not caused by or a result of the Veteran's military acoustic trauma. The examiner based his conclusion on the absence of any complaints of or treatment for hearing loss or tinnitus in service or any indication of ear or hearing problems at separation from service, as well as the Veteran's post-service history of occupational noise exposure. He stated, "based on the data provided, the current mild degree of hearing loss and reported tinnitus is more likely a reflection of a long standing condition whose severity has progressed over time from civilian occupational noise." Significantly, the examiner failed to discuss the Veteran's lay testimony that he had first observed symptoms of tinnitus in service. Based on all the above evidence, the Board finds that entitlement to service connection for tinnitus is warranted. While there is no evidence of tinnitus in the Veteran's service treatment records or for many years after service, providing some evidence against the Veteran's claim, he has consistently testified that he first experienced a constant ringing in his ears in service. The Veteran is competent to testify regarding observable physical symptoms, such as a ringing in his ears, and there is no evidence of record to suggest that he is not credible. The Veteran's duties as a boatswain's mate are classified as having a high probability of hazardous noise exposure, supporting the Veteran's accounts that his military duties frequently exposed him to loud noise. While the VA examiner concluded that the Veteran's tinnitus was not caused by his military service, the examiner appeared to disregard the Veteran's lay testimony, rendering his opinion inadequate. Furthermore, the examiner's opinion that the Veteran's tinnitus is a long standing condition that has progressively worsened due to his civilian noise exposure is not inconsistent with a finding that the Veteran's tinnitus had onset in service. It is quite possible that the Veteran's tinnitus had onset in service as he has repeatedly testified, but that this condition progressively worsened due to post-service noise exposure. Having reviewed all the evidence, the Board finds that it is at least in equipoise that the Veteran's claimed condition began in service. Accordingly, he is awarded the benefit of the doubt and entitlement to service connection for tinnitus is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). 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 claimants 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER New and material evidence having been received, the Veteran's previously denied claim for entitlement to service connection for tinnitus is reopened. Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs