Citation Nr: 1517204 Decision Date: 04/22/15 Archive Date: 04/24/15 DOCKET NO. 12-28 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from April 1997 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, prior to certification of the appeal to the Board, the Veteran withdrew his appeal for increased ratings for major depressive disorder and allergic rhinitis. As these issues were withdrawn prior to certification, they are not in appellate status and are not before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file (VBMS and Virtual VA). The Board has reviewed the contents of the electronic file in addition to the paper file in deciding this claim. FINDINGS OF FACT 1. Service connection for tinnitus was originally denied in a January 2002 rating decision, the Veteran was notified of such denial and his appellate rights, and he did not submit additional evidence or appeal from that determination within one year. 2. Evidence received since the last final denial raises a reasonable possibility of substantiating the claim for tinnitus. 3. The Veteran's tinnitus is as likely as not attributable to his active military service. CONCLUSIONS OF LAW 1. The January 2002 denial of the service connection claim for tinnitus was final, and new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2014). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the claim for service connection for tinnitus and grants the claim on the merits. Therefore, VA's duty to notify or assist, including pursuant to 38 C.F.R. § 3.103(c)(2) (2014) and Bryant v. Shinseki, 23 Vet App 488 (2010), are rendered moot. I. New and Material Evidence The RO denied the veteran's service connection claim for tinnitus in a January 2002 rating decision. The veteran was advised of the decision and of his procedural and appellate rights in a letter dated that same month. However, the veteran did not appeal. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103 (2014). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received during an applicable appeal period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. §§ 3.156(b) . 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). The Veteran's claim for entitlement to service connection for tinnitus was initially denied in a January 2002 rating decision. The Veteran was notified of the denial in a notice letter dated January 2002. There is no notice of disagreement received within one year of that notification letter. Accordingly, the January 2002 is final. Therefore, new and material evidence is required to reopen the claim of service connection for tinnitus, regardless of how the RO characterized the issue. See 38 U.S.C.A. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The January 2002 rating decision denied service connection because the evidence of record-service treatment records dated April 1997 to April 2001-did not show in-service evidence of complaints of, or treatment for, tinnitus. Since January 2002, the Veteran has submitted a statement indicating continuous tinnitus symptomatology since service, as well as an internet article which discusses alternate causes of tinnitus. Finally, the RO determined that the evidence of record warranted obtaining medical opinions in November 2008 and July 2012 regarding nexus to service or a service-connected disability. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). In light of the above, the Board finds that such evidence constitutes new and material evidence, as it relates directly to whether the Veteran's tinnitus began in or was the result of military service or a service-connected disability. It raises a reasonable possibility of substantiating the claim. As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claim is reopened. II. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). In addition, certain chronic diseases, such as tinnitus, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). The Veteran satisfies the existence of the present disability standard for his tinnitus claim. In November 2008, the Veteran underwent a VA audiological examination and indicated a current complaint of tinnitus. In July 2012, the Veteran was afforded another VA audiological evaluation in which the VA examiner also indicated recurrent tinnitus. Tinnitus is a condition a layperson can identify. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements in this case are competent since tinnitus is subjective, and the kind of condition to which lay testimony is competent. The statements have been fairly consistent and reliable, and the Board finds them credible. Thus, the current disability element is established by the evidence. The evidence of record also supports a finding that the Veteran sustained exposure to loud noises while in service. A Chronological Record of Medical Care and Medical Surveillance Questionnaire dated February 1998 indicate that the Veteran had noise exposure in his duties as bulk fuel specialist, security alarm installer, and service technician, often without ear protection. The Veteran also stated that, during service, he was stationed on the flight line refueling jets for 2 and 1/2 years and also spent 1 to 2 weeks per year at the rifle range. See May 2009 notice of disagreement. As the Veteran's service records are supportive of his competent and credible contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met for tinnitus. Finally, the evidence of record also supports the Veteran's reports that tinnitus first began during service. At February 2001 separation examination, the Veteran reported, "hearing goes in and out (ringing)." Moreover, the Veteran filed his initial claim for tinnitus in September 2001, just 5 months following separation from service. As noted above, tinnitus is the type of condition that a lay person can identify. Charles, 16 Vet. App. at 374. The Board finds that the Veteran is both competent and credible to report tinnitus during service and since service. At the least, this evidence raises reasonable doubt as to whether the Veteran's tinnitus is etiologically related to noise exposure in service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that tinnitus is in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). Thus, the Board concludes that service connection for tinnitus is warranted. ORDER As new and material evidence has been received, the claim of service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs