Citation Nr: 1756776 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-21 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran had active military service from June 1962 to June 1965 and May 1968 to March 1969. These matters come before the Board of Veterans' Appeals (Board) from a November 2010 letter of determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. A March 2008 rating decision denied the Veteran's claim of entitlement to service connection for tinnitus. 2. Evidence received since the time of the March 2008 rating decision is new and raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. 3. Tinnitus is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for tinnitus is new and material, and the claim is reopened. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran is currently seeking to reopen a claim of entitlement to service connection for tinnitus. Historically, the Veteran's service connection claim was denied in a March 2008 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the March 2008 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In July 2010, the Veteran requested to reopen his tinnitus claim. Thus, the Board must now determine whether new and material evidence has been received to reopen the Veteran's claim. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence added to the record since the March 2008 rating decision includes the Veteran's Social Security Administration (SSA) records; VA treatment records spanning July 2009 to June 2011; and a lay statement from the Veteran dated July 2010. That evidence all qualifies as new as it was not of record at the time of the March 2008 rating decision. The Board further finds that the evidence qualifies as material, as it contributes to a more complete understanding of the circumstances surrounding the Veteran's claim, to include the nature of his current disability and the onset of his related symptoms. 38 C.F.R. § 3.156(a) (2017). The Board therefore finds that new and material evidence has been received since the prior final denial of the claim in March 2008. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Thus, the claim of entitlement to service connection for tinnitus is reopened. Service Connection Upon the reopening of the claim, the Board must now consider whether entitlement to service connection for tinnitus is warranted. At the outset, the Board finds evidence of the claimed disability. The Veteran has provided competent testimony regarding the existence of this disability, as supported by VA treatment records. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus); see also VA treatment records dated May 2010 (reporting a history of tinnitus). Thus, the first element of service connection has been met. Shedden v. Principi, 381 F.3d 1163 (2004). The Board further finds competent and credible evidence of acoustic trauma during active service. To that end, the Veteran has reported in-service noise exposure due to "shooting in infantry and on the rifle team." Generally, a veteran is competent to report that which he perceives through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran's testimony is corroborated by the additional evidence of record. Notably, the Veteran's Certificate of Release or Discharge from Active Duty (DD-214) denotes his assignments as an infantryman and to the Company B, 326th Engineer Battalion. Thus, the Veteran's descriptions of the in-service events are consistent with the nature of his service, and his reports are unvarying throughout the record. Accordingly, the Board finds that the second Shedden element has been met. As to the third and final element for service connection, the Veteran has indicated that he initially observed a ringing in his ears in service, which has continued since that time. The Veteran's competent and credible testimony meets the nexus criteria set forth in 38 C.F.R. § 3.303(d) (2017), as it indicates that his tinnitus initially onset at the time of his in-service acoustic trauma and has continued ever since. The Court of Appeals for Veteran's Claims recently held that tinnitus is an organic disease of the nervous system under 38 C.F.R. § 3.309 and therefore service connection may be granted based on competent and credible evidence of continuity of symptomatology. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Thus, the preponderance of the competent and credible evidence supports the Veteran's contention that his tinnitus began in service and has continued since that time. Service connection for tinnitus is therefore warranted. 38 C.F.R. § 3.303 (2017). ORDER New and material evidence having 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