Citation Nr: 1333223	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  11-20 627	)	DATE
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On appeal from the 
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection 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

A.P. Armstrong, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1963 to August 1967.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for tinnitus.

Although the Veteran's original appeal was for both hearing loss and tinnitus, the RO granted service connection for hearing loss in July 2011; therefore that claim is no longer on appeal.


FINDINGS OF FACT

1. Service connection was denied for tinnitus in a February 2005 determination by the RO, the Veteran was notified of his appellate rights but did not appeal, and no new and material evidence was received within one year of that determination.

2. Evidence received since the last final denial of service connection includes information that was not previously considered and that relates to an unestablished fact necessary to substantiate the claim.

3. The Veteran's tinnitus is the result of noise exposure in service. 


CONCLUSIONS OF LAW

1. The February 2005 RO denial of service connection for tinnitus became final, and new and material evidence has been received to reopen the previously denied claim.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2013).

2. The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran applied to reopen his claim for service connection for tinnitus in February 2010.  As the Board's decision herein to reopen the Veteran's claim and grant service connection for tinnitus constitutes a full grant of the benefit sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations.  

I. New and Material Evidence

Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim.  See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995).  New evidence is that which was not previously submitted to agency decision makers.  Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

For the purpose of reopening, evidence received is generally presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  

The RO issued a rating decision denying the Veteran's claim for entitlement to service connection for tinnitus in February 2005.  The RO found no evidence of a current disability.  He was notified of his appellate rights and did not contact VA about this claim until February 2010 or provide any new evidence within one year of the decision.  Therefore, the February 2005 rating decision became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104.

The evidence of record at the time of the February 2005 decision included service treatment records and statements from the Veteran.  This evidence included the Veteran's report that he had experienced tinnitus since service.  There was no medical evidence because the Veteran failed to report for a scheduled VA examination or identify any pertinent post-service treatment.

In February 2010, the Veteran submitted an application to reopen the claim for service connection.  In May 2010, a VA examiner diagnosed him with hearing loss and tinnitus.  Further, the Veteran submitted a letter in August 2011 from a private audiologist confirming those diagnoses and providing a positive etiology opinion.
 
The new evidence relates to unestablished elements of the previously denied claim.  Specifically, the new evidence is pertinent to whether the Veteran has a current disability.  The evidence raises a reasonable possibility of substantiating the claim inasmuch as it provides a positive medical opinion as to nexus.  Therefore, the claim is reopened.  See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a).  

II. Merits of the Claim

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. §3.303(a).  To establish entitlement to service-connection, evidence must show: "(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-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran is competent to identify tinnitus, as this condition is observable by his own senses.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  He is also competent to report the onset and persistence of tinnitus symptoms.  See id.  

First, the Veteran has a current tinnitus disability.  He has reported experiencing tinnitus, or ringing in his ears, during the current appeal.  Further, the VA examiner in May 2010 diagnosed tinnitus.

An in-service incurrence or injury is shown by the Veteran's reports of in-service acoustic trauma and conceded by the VA.  The Veteran worked as a machinist mate during service where he was exposed to loud noises without hearing protection.   

Finally, there is evidence of a nexus between the in-service acoustic trauma and current tinnitus.  The Veteran has consistently reported experiencing tinnitus symptoms since service.  Continuity of symptomatology can establish a nexus in this case, if tinnitus is viewed a chronic disease.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As an organic disease of the nervous system, tinnitus is a chronic disease.  38 U.S.C.A. § 1101 (West 2002).  There is little to contradict the Veteran's competent reports, and they are deemed credible.  Service connection for tinnitus may be proven by lay observations, including those of persistent and observable symptoms.  Charles, 16 Vet. App. at 374; see also 38 U.S.C.A. § 1154(a).  VA examiners have provided opinions that weigh neither for nor against the claim, inasmuch as they said they could not provide opinions without resort to speculation.  Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  One examiner provided a negative opinion, but no rationale.

Further, in a letter dated July 2011, a private audiologist provided an opinion that the Veteran's tinnitus is more likely than not caused by his military noise exposure.  She supported her conclusion with a good rationale and pertinent medical research; and her opinion is more probative than the negative opinion by the VA examiner who did not provide convincing rationale.  

In sum, the evidence shows a link between the Veteran's current tinnitus and service, and service connection for tinnitus is established.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).


ORDER

Service connection for tinnitus is granted.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs