Citation Nr: 1751913 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-04 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and if so, whether the reopened claim can be granted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from October 1994 to December 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The June 2012 rating decision, in relevant part, also denied entitlement to service connection for a bilateral hearing loss disability. The Board notes that the Veteran filed a notice of disagreement with this finding in February 2013, but submitted a January 2014 document explicitly withdrawing the issue prior to filing a formal appeal with the Board in February 2014. As no formal appeal was filed with respect to this issue, the Board does not have jurisdiction over it and has limited its consideration accordingly. FINDINGS OF FACT 1. In an unappealed February 2008 rating decision, the RO denied reopening the claim of entitlement to service connection for tinnitus. 2. The evidence with associated with the claims file subsequent to the February 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection tinnitus. 3. Tinnitus is etiologically related to noise exposure sustained while in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. Tinnitus was incurred in active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran originally filed his claim of entitlement to service connection for tinnitus in October 2005. In a June 2006 rating decision, the RO denied entitlement to service connection for tinnitus based on a finding that the claim was not well grounded because there was no evidence of record that the Veteran had been diagnosed with tinnitus. The Veteran did not appeal this decision. In a February 2008 rating decision, the RO denied reopening the claim of entitlement to service connection for tinnitus. The Veteran did not appeal that decision. The pertinent evidence of record that has been received since the February 2008 rating decision includes the following: an August 2015 VA audiology evaluation report, at which time the Veteran reported longstanding tinnitus; and the Veteran's treatment records through present time wherein he frequently complained of ringing in his ears and described a sound machine which has somewhat alleviated his symptoms. The Board finds that the Veteran's medical records and VA audiology evaluation report showing him to have tinnitus are new and material. In this regard, the Board finds that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, they are sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for tinnitus is warranted. Entitlement to Service Connection for Tinnitus The Veteran has asserted that he has tinnitus that is a result of noise exposure during active service. Specifically, the Veteran has reported that while in service he worked as a motor vehicle operator. He stated that while in active service, he was exposed to frequent live firings and explosions both in boot camp and in training. He has reported that he has experienced tinnitus as a result of the hazardous noise exposure in service. The Board concedes the Veteran's hazardous noise exposure while in active service. Service treatment records are silent for complaints of, or treatment for tinnitus while the Veteran was in active service. However, the Board finds that the Veteran is competent to report when he first experienced symptoms of tinnitus and that it has continued since his active service. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in this regard. Post-service medical records indicate that the Veteran was diagnosed with tinnitus after having complained of ringing in his hears for quite some time. The Veteran stated that he did not really know what it was until several years ago. In January 2014, VA treatment notes show that the Veteran had testing done for his tinnitus, but was unable to tolerate the testing well, and that he complained of high-pitched tinnitus. In August 2015, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported that he was exposed to live firings and explosions during his active service. He reported that since his separation from service, he had not been subjected to acoustic trauma occupationally and denied any recreational noise exposure. The Veteran also reported that he experienced recurrent tinnitus and that it had been occurring for a long time. The examiner diagnosed tinnitus and opined that it was less likely than not that the Veteran's tinnitus was due to noise exposure in service due to the fact that the Veteran had normal hearing upon his separation from service, and that his service treatment records showed no indication of tinnitus. The Board finds that the August 2015 VA opinion is inadequate for adjudication purposes. The opinion did not give sufficient consideration to the Veteran's lay statements regarding the onset of tinnitus in service. Instead, the examiner cited the Veteran's audiometric test results at enlistment and separation as evidence that tinnitus was not incurred in service, thereby improperly conflating tinnitus with hearing loss. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. In February 2016, VA treatment records show that the Veteran again complained of tinnitus bilaterally that was increasing in severity. VA treatment records from November 2016 indicate that the Veteran's tinnitus was improving after he began using a sound generator. In July 2017, the Veteran's treatment provider indicated that his tinnitus was likely related to muscle spasms and recommended continued use of the sound machine. 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify tinnitus. Additionally, the Board finds the Veteran credible in his reports that tinnitus began in service and has continued ever since. The Veteran's statements regarding onset are consistent with the circumstances of his service and with the record as a whole, and as previously stated, the Board therefore finds him credible in this regard. In sum, the Veteran has a current diagnosis of tinnitus, and the Board concedes that he sustained acoustic trauma during active service. The VA medical opinion of record lacks probative value in determining whether a nexus exists between the Veteran's current disability and his active service. However, the Veteran has competently and credibly reported that he first noticed tinnitus during service and that his symptomatology has continued since service. Therefore, the Board finds that the evidence for and against the claim is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The Board having determined that new and material evidence has been received, reopening the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs