Citation Nr: 1341785	
Decision Date: 12/18/13    Archive Date: 12/31/13

DOCKET NO.  11-28 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Denver, Colorado


THE ISSUE

Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel
INTRODUCTION

The Veteran had active military service from October 1960 to October 1980.

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision. 

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 


FINDINGS OF FACT

1.  An August 2007 rating decision denied the Veteran's claim of entitlement to service connection for tinnitus; and the Veteran did not appeal or submit new and material evidence within a year.

2.  Additional evidence submitted since August 2007 raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus.  

3.  The evidence makes it at least as likely as not that the Veteran's tinnitus is the result of his military noise exposure.


CONCLUSIONS OF LAW

1.  The August 2007 rating decision denying service connection for tinnitus is final; new and material evidence having been presented, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.300, 20.1103 (2013). 

2.  Criteria for service connection for tinnitus have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Reopening

The Veteran seeks to establish service connection for tinnitus.  A rating decision issued by the RO in August 2007 denied the claim for service connection for tinnitus on the basis that the Veteran did not have tinnitus.  The RO notified the Veteran of this decision by a letter that month, but he did not appeal.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302(a).  An unappealed determination of the agency of original jurisdiction (AOJ) is final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a).  

The Veteran similarly failed to submit new and material evidence within a year of this rating decision, also causing the August 2007 rating decision to become final.  38 C.F.R. § 3.156(b).

However, a previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. 3.156.  Evidence is new if it has not been previously submitted to agency decision makers.  38 U.S.C.A. § 5108; 38 C.F.R.  § 3.156(a).  Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be cumulative or 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.  Id.  

The Veteran's claim was denied by an August 2007 rating decision which found that he did not have tinnitus at that time.  Since that time, evidence, including the Veteran's testimony, and VA treatment and examination reports, has shown the presence of tinnitus.

This new information, which addresses the precise reason the Veteran's claim was previously denied, is felt to raise at the very least a reasonable possibility of substantiating the Veteran's claim, and it is therefore reopened. 
II.  Service Connection

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

In March 2010, the Veteran filed a claim seeking service connection for tinnitus.  

It is clear that the Veteran experienced considerable noise exposure in service.  For example, he testified at a hearing before the Board in August 2013 that his first assignment in service was working on aircrafts, which required him to be out on the runway all the time.  He added that whenever they had an alert, they would have to download the film at the end of the runway, which required him to sit underneath the engine while they were opening up the doors to get up in.  He reported doing this for approximately 3.5 years.  He also reported being stationed in Vietnam where they were frequently mortared.  He has consistently described similar noise exposure in statements to VA and to medical professionals.  As such, the Veteran's military noise exposure is conceded.  See 38 U.S.C.A. § 1154(a).

It is acknowledged that there is no record of any post-service complaints of, or treatment for, ringing either in service or for multiple decades following service.  It is also noted that a VA examiner concluded in May 2010 that it was less likely than not that the Veteran's tinnitus was related to his military noise exposure.  

However, the Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Moreover, 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
 
Here, the Veteran was asked at his hearing when he first noticed a ringing or whooshing in his ears, to which he responded that it began approximately two years after separation from service when it would come and go, and added that it had worsened over the years such that it was all the time.  Upon further questioning, the Veteran conceded that he had probably experienced it in service.

The Veteran's spouse also testified, indicating that they had been married since 1977 (while the Veteran was in service).  She recalled that even when they were first married, she remembered the Veteran complaining about buzzing in his head.

The negative VA opinion was based largely on the examiner's conclusion that the Veteran was an unreliable historian.  However, at his hearing, the undersigned Veterans Law Judge found the Veteran's testimony about the onset of and generally unremitting tinnitus symptoms since service to be highly credible; particularly in light of the fact that it was supported by credible testimony from his spouse.

Having reviewed the evidence in its entirety, the Board finds that the lay statements constitute highly probative evidence which is sufficient to meet the criteria for service connection.  Therefore, the Veteran's claim is granted.

In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).
 







ORDER

New and material evidence having been presented, the Veteran's claim of entitlement to service connection for tinnitus is reopened.

Service connection for tinnitus is granted.


____________________________________________
MICHELLE L. KANE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs