Citation Nr: 1338644 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-25 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for tinnitus. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from March and September 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2012 the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In the September 2009 rating decision, the RO reopened the claim for service connection for tinnitus and addressed the claim on the merits. Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that was not considered by the RO in the most recent supplemental statement of the case (SSOC). As the claim for service connection for tinnitus is being reopened and granted, the Board finds that the Veteran is not prejudiced by consideration of this evidence without a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1102 (2013). The Veteran also submitted additional evidence in support of his claim at his June 2012 hearing. This evidence was accompanied by a waiver of AOJ consideration. FINDINGS OF FACT 1. In June 2012, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw from appeal the claim of entitlement to a compensable rating for bilateral hearing loss. 2. In a May 1997 decision, the Board denied service connection for tinnitus. 3. Evidence associated with the claims file since the May 1997 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus and raises a reasonable possibility of substantiating the claim. 4. The Veteran has current tinnitus which was incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the claim of entitlement to a compensable rating for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The May 1997 Board decision, denying service connection for tinnitus, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). 3. As pertinent evidence received since the May 1997 Board decision is new and material, the criteria for reopening the claim for service connection for tinnitus are met. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2013). 4. The criteria for the establishment of service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). A substantive appeal may be withdrawn on the record during a hearing, and at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204 (2013). Withdrawal may be made by the Veteran or by his or her authorized representative. See 38 C.F.R. § 20.204. During the June 2012 hearing, the Veteran withdrew from appeal the claim of entitlement to a compensable rating for bilateral hearing loss. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this matter. Accordingly, the Board does not have jurisdiction to review this claim, and it must be dismissed. Analysis In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The pertinent regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2013). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Veteran was denied service connection for tinnitus in a February 1996 rating decision. He appealed this denial, and the claim for service connection was denied in a May 1997 Board decision. The basis of the Board's denial was that there was no evidence of a nexus between the Veteran's tinnitus and his military service. That decision is final as to the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The Veteran sought to reopen his claim in April 2009. The evidence added to the record since the May 1997 Board decision includes a June 2009 treatment record in which Dr. B.G.K. opined that it was at least as likely as not that the Veteran's tinnitus was directly related to in-service noise exposure. The June 2009 opinion is new in that it was not previously considered in the May 1997 Board decision. The evidence is also material in that it relates to an unestablished fact necessary to substantiate the claim, that is, a relationship between the Veteran's tinnitus and service. This evidence raises a reasonable possibility of substantiating the claim. Thus, the claim must be reopened. Turning to the merits of the claim for service connection, the Veteran has current tinnitus, as documented in the June 2009 treatment record from Dr. B.G.K. and as consistently reported by the Veteran. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus is a condition capable of lay observation). The Veteran has reported in-service noise exposure from the firing range. He is competent to report in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Board further notes that the Veteran is currently service-connected for bilateral hearing loss, in part, based on service treatment records showing complaints of decreased auditory acuity in service. As such, the Board accepts the Veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a). The first two elements of the service connection claim have been satisfied. The remaining question is whether there is a nexus between the Veteran's current tinnitus and service. The evidence in this regard consists of a March 2009 VA opinion and the June 2009 statement from Dr. B.G.K. The March 2009 VA examiner stated that due to inconsistencies in statements from the Veteran as to when his tinnitus started he could not determine the time of onset of the condition, or its relationship to the Veteran's military service/noise exposure without resorting to mere speculation. The March 2009 VA examiner's opinion is of minimal probative value, as it provides neither a positive nor a negative opinion regarding the relationship between the Veteran's current tinnitus and service. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed.Cir.2009) (an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection). However, the June 2009 treatment record from Dr. B.G.K. includes his opinion that the Veteran's current tinnitus is at least as likely as not directly related to his in-service noise exposure. This opinion has probative value as it was provided by a medical professional who examined the Veteran, reviewed a recent audiogram, and considered the Veteran's history of in-service noise exposure from the firing range with tinnitus during and since service. Each of the three elements of the successful service connection claim has been satisfied. Thus, service connection for tinnitus is warranted. ORDER The appeal as to the claim of entitlement to a compensable rating for bilateral hearing loss is dismissed. New and material evidence having been received; the issue of entitlement to service connection for tinnitus is reopened. Service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs