Citation Nr: 1532831 Decision Date: 08/03/15 Archive Date: 08/11/15 DOCKET NO. 12-00 518 ) 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 to reopen a previously denied claim of service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The Veteran served on active duty with the United States Navy from February 1960 to February 1962; he was additionally a member of the Navy Reserves since 1955. These matters come before the Board of Veterans Appeals (Board) on appeal from an August 2009 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for tinnitus. Although a December 2011 statement of the case (SOC) purported to decline reopening as well, it did proceed to consideration of the merits of the claim. However, irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened...."). The issues on appeal are characterized accordingly. The Veteran testified at a June 2015 hearing held before the undersigned at the RO; a transcript of the hearing is associated with the claims file. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Service connection for tinnitus was denied in a January 2008 rating decision on the grounds that no nexus to service was shown; the Veteran failed to perfect an appeal of this denial. 2. Evidence received since January 2008 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. Currently diagnosed tinnitus had its onset on active duty. CONCLUSIONS OF LAW 1. The January 2008 rating decision denying service connection for tinnitus is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2104). 2. The criteria for reopening of a previously denied claim of service connection for tinnitus are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. The criteria for service connection of tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. New and Material Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The RO originally denied service connection for tinnitus in an April 2007 rating decision finding that the disorder was not diagnosed. In December 2007, the Veteran reported that he was diagnosed as having tinnitus and a VA treatment record noted that the Veteran had tinnitus. In January 2008 the RO confirmed and continued the earlier denial of tinnitus finding that the no relationship between current tinnitus and a disease or injury in service was shown. The Veteran filed a notice of disagreement in February 2008 but did not thereafter perfect the appeal following the issuance of the September 2008 statement of the case. The RO's decisions are therefore final. The evidence of record consisted of service treatment and personnel records showing no complaints, treatment, or diagnosis of tinnitus; and a December 2007 VA consultation note in which the Veteran reported a history of constant bilateral tinnitus. Since January 2008, the Veteran has submitted several statements in which he avers that tinnitus began on active duty. The credibility of these statements is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As they directly address the possibility of a nexus to service by indicating the onset of disease on active duty, they are material. As the Veteran had not previously made such a clear statement as to when tinnitus began, they are new. Accordingly, new and material evidence has been received, and reopening of the previously denied claim is appropriate. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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 the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran has reported, and doctors have endorsed, that he currently experiences a tinnitus on a constant basis in both ears. A current disability is therefore established by competent lay and medical evidence. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). The Veteran served primarily aboard submarines. He has alleged that in 1960, while serving aboard the USS Nautilus on a mission off the coast of Russia, he was exposed to an explosion from a depth charge. The Board notes that the Veteran was aboard this submarine from March to mid-November 1960; for all but three weeks of that period, the Nautilus was undergoing refit and testing in New London, Connecticut, as per the official ship's history. It left for a cruise of the Mediterranean at the end of October 1960. His listed rating was as a Seaman; in other words, he was the Navy equivalent of a general laborer. The Board finds his duties as such aboard submarines to be consistent with allegations of noise exposure. An injury due to acoustic trauma is established. The question, then, focuses on whether a nexus exists between the in-service noise exposure and the current disability. No doctor or other medical professional has stated that a causal relationship exists. The sole opining VA doctor offered a negative opinion. However, the examiner recorded the Veteran as not recalling when tinnitus had arisen, or the circumstances of the onset. Several times since the examination, the Veteran has clearly stated that tinnitus began on active duty, in approximately 1960. He has reported such directly to VA, and has stated it to treating private doctors. While the Veteran initially stated that he could not recall the details of the onset of tinnitus, and later indicated such began on active duty, the Board cannot state that the Veteran's statements are entirely contradictory. He has not stated both that tinnitus began in and after service. A failure of memory at one point, followed by later recall, is not necessarily an indicator of a lack of credibility. Further, the other prong of the rationale behind the denial, that there is no documentation in service for tinnitus, cannot be the sole basis of a finding of a lack of credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, service connection for hearing loss has been granted based on the in-service noise exposure. While doctors do not find the acoustic trauma of military service to be entirely responsible for the current hearing disability, the noise in service was sufficient to contribute to the disability. The noise did some damage to the Veteran's audio sense, and this supports a conclusion that it may have been enough to cause tinnitus, as the Veteran has reported. Accordingly, the evidence of onset of tinnitus in service is in equipoise, and reasonable doubts must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. A nexus is therefore considered established and service connection for tinnitus is warranted. ORDER Reopening of a previously denied claim of service connection for tinnitus is granted. Service connection for tinnitus is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs