Citation Nr: 1336840	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  13-16 019	)	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 received to reopen a claim of 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

J.  Gladney, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1967 to March 1976.  His service medals and decorations include the Purple Heart Medal. 

This matter comes before the Board of Veterans' Appeal (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which determined that new and material evidence had not been received to reopen the Veteran's claim for tinnitus.

In January 2012, the Veteran submitted a formal claim, VA Form 21-8940, for a TDIU.  This claim has not yet been adjudicated and is therefore REFERRED to the RO/AMC for the appropriate consideration.


FINDINGS OF FACT

1.  The RO denied service connection for tinnitus in a June 2004 rating decision; the Veteran did not appeal that decision and, thus, it became final.

2.  Additional evidence received since the June 2004 final rating decision relates to an unestablished fact necessary to substantiate the service connection claim for tinnitus.

3.  The Veteran's tinnitus is etiologically related to noise exposure in service.


CONCLUSIONS OF LAW

1.  New and material evidence to reopen the previously denied service connection claim for tinnitus has been received.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


2.  The criteria to establish service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

I.  The Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Because the Board is granting service connection for tinnitus, representing a full grant of the benefit sought on appeal, any failure with respect to the duty to notify or assist is nonprejudicial.  Thus, no further discussion of VA's duties to notify and assist is necessary.

II.  Legal Criteria

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a) (2013).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160, 20.201, 20.302 (2013). 

To reopen a claim, new and material evidence must be presented or secured.  38 U.S.C.A. § 5108 (West 2002).  "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992). 

Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. 

Applicable here, "new" evidence is defined as 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) (2013).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  "To establish a right to compensation for a present disability, a Veteran 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

In the case of a Veteran who engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

III.  New and Material Evidence

In December 2003, VA received the Veteran's original service connection claim for tinnitus in which he states his disability is secondary to an explosion that he experienced while serving in Vietnam.  The Veteran was afforded the combat presumption under 38 U.S.C.A. § 1154 because of his receipt of the Purple Heart Medal.  His lay statements were therefore sufficient proof of an in-service injury.  However, his STRs did not show any treatment, complaints, or diagnoses referable to tinnitus.  In May 2004, the Veteran was afforded a VA audiology examination.  The VA examiner noted the Veteran's history of military, occupational, and recreational noise exposure.  The examiner stated that the Veteran's high risk military noise exposure was attributed to his occupation as a combat engineer "where he was subjected to demolition, infantry, and the usual sounds associated with being a combat engineer (mine sweeping)."  Furthermore, the examiner noted that "other sources of high risk noise included both occupational and recreational noise."  The examiner determined that the Veteran's "hearing thresholds were within normal limits bilaterally."  After reviewing the claims file and audiological test results, the examiner determined "[the] data [does] not support a claim for HL and tinnitus attributable to high risk noise.  While tinnitus may be present more likely than not it is related to other factors (not military noise as there is no recordable hearing loss in the higher frequencies)."  Thereafter, the RO denied the Veteran's original service connection claim for tinnitus in a June 2004 rating decision because there was no evidence of a nexus between his tinnitus and service.  The Veteran did not appeal the June 2004 decision and it, therefore, became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

Subsequently, in August 2011, the Veteran sought to reopen his service connection claim for tinnitus.  The new evidence added to his claims file since the June 2004 rating decision includes additional contentions from the Veteran and additional VA medical evidence.

As noted above, to be material the new evidence alone or when considered with previous evidence in the claims file must relate to an unestablished fact necessary to substantiate his claim.  Here, the unestablished fact is the nexus between the Veteran's tinnitus and an in service event. 

The Veteran's statements received after the final rating decision are both new and material.  In his January 2012 notice of disagreement and in his May 2013 substantive appeal, the Veteran more specifically asserted his contentions, specifically that he has had continuous tinnitus symptoms since an in-service explosion where he was injured by mortar shells.  These newly received statements as to continuing symptoms since service are more detailed and serve to establish the nexus necessary to support the Veteran's claim for service connection.  Thus, the Board finds that they are material. 

Based on the foregoing, the Board finds that the lay evidence received since the June 2004 rating decision is new and material evidence and the service connection claim for tinnitus shall be reopened.

IV.  Service Connection Claim for Tinnitus

The evidence shows that the Veteran has a current diagnosis of tinnitus.  The evidence also shows that the Veteran was exposed to acoustic trauma in service and that he had tinnitus in service following such exposure.  The determinative question to be addressed is whether the Veteran's current tinnitus is related to service, including to the acoustic trauma in service and/or to the tinnitus in service.

The Veteran served in combat, and is entitled to the relaxed evidentiary requirements afforded under 38 U.S.C.A. § 1154(b).  The Board is presented with a combat Veteran's account that the onset of his tinnitus is related to his exposure to a combat explosion for which he was awarded the Purple Heart.  

Tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1956 (31st ed. 2007).  By its very nature, it is an inherently subjective condition.  Therefore, the Veteran is competent even as a layman to make this proclamation of continuous tinnitus since service.  See Charles v. Principi, 16 Vet. App. 370 (2002) ("ringing in the ears is capable of lay observation"); see Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person).  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  Thus, the Board finds that the Veteran is competent to report that he experienced noise exposure in service, and that he has experienced tinnitus since service.  

As tinnitus is a disability capable of lay observation and the Veteran's accounts of onset in service and continuation since are deemed credible, he has satisfied the evidentiary requirements for substantiating the nexus element of his service connection claim.  The May 2004 negative VA opinion regarding the etiology of the Veteran's tinnitus by a VA examiner is not probative as it does not consider the Veteran's assertions regarding the service onset of tinnitus and the continuation of such in service and following service.  The Board finds that the Veteran is both credible and competent to attest to the initial onset and continuity of his tinnitus.  The Board has no reason to question the veracity of his accounts, particularly in light of his entitlement to consideration of his claim under 38 U.S.C.A. § 1154(b).  

In sum, the record shows that the Veteran has a current diagnosis of tinnitus, and that there is credible evidence that he was exposed to acoustic trauma in service and that he had tinnitus in service following such exposure.  Lastly, the Board finds that there is credible evidence that the Veteran continued to have tinnitus following his 
discharge from service.  Given the foregoing, the elements of service connection for












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tinnitus have been substantiated.  Therefore, service connection for tinnitus is warranted.



ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus, and entitlement to service connection for tinnitus is granted.





____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs