Citation Nr: 1800284 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-51 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran testified at a DRO hearing. Then, in October 2017, he testified at a Board hearing. Transcripts of both hearings are of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.§ 7107(a)(2) (2012). FINDINGS OF FACT 1. A July 2007 rating decision denied service connection for tinnitus; the Veteran did not appeal it; no new evidence was received within a year of the decision. 2. Since the last final denial in July 2007, new and material evidence related to the issue of service connection for tinnitus has been received. 3. The weight of the evidence favors a finding that the Veteran's current tinnitus began in and has continued since service. CONCLUSIONS OF LAW 1. The July 2007 denial of service connection for tinnitus became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104 (2017). 2. New and material evidence has been received to reopen the previously denied claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The RO initially denied service connection for tinnitus in a July 2007 rating decision. The RO's decision was based on a finding that there was no evidence of a current diagnosis. The RO also noted that the Veteran's service treatment records failed to show evidence of complaints, treatment, or diagnosis of tinnitus. The Veteran did not appeal this denial, and no new evidence was received within a year of it. As such, the July 2007 rating decision became final. Since the last final denial, in July 2017, VA has received new and materia evidence to reopen the previously denied claim. Significantly, the Veteran has undergone two VA examinations, which show a history of recurrent tinnitus since service. The Veteran has also provided testimony regarding his history of tinnitus symptoms. This new evidence relates to an unestablished element (current disability) of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C.A. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease of the nervous system'"); 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran seeks service connection for tinnitus. See 01/25/2013, VA 21-526EZ, Fully Developed Claim (Compensation). He has reported a history of recurrent tinnitus since service. See 04/09/2013, VA examination, at 23; 06/30/2016, DRO Hearing Testimony, at 6; 07/14/2016, VA examination, at 8; 10/13/2017, Hearing Transcript, at 5-6. He believes that his tinnitus is related to noise exposure in service. His reported exposure to heavy artillery noise is consistent with his military occupational specialty of artillery crewman. In addition, the Veteran has submitted statement from Dr. MFM. In it, Dr. MFM indicated that the Veteran's current hearing loss disability is consistent with severe noise exposure in the past. See 10/26/2017, Medical Treatment Record - Non-Government Facility, at 2. In April 2013, a VA examiner opined that the Veteran's tinnitus is at least as likely as not related to his diagnosed hearing loss (not service-connected), and less likely than not related to military noise exposure. The examiner's rationale was that the Veteran's hearing was normal at separation, there was no significant threshold shift between enlistment and separation, and service treatment records were silent for complaints of tinnitus. In July 2016, a different VA examiner reached a similar conclusion. The examiner noted that the Veteran's hearing loss is in a pattern consistent with presbycusis, which is the most common cause of tinnitus. He also noted that that there was no significant hearing threshold shift in service, no report of tinnitus in service treatment or post-service treatment records prior to 2009, and no evidence to support onset during military service. Based on these findings, the examiner opined that the Veteran's tinnitus is less likely than not related to military noise exposure. In June 2017, a third examiner also opined that the Veteran's recurrent tinnitus is less likely than not related to service. Again, the examiner's rationale was there was no record of tinnitus in service. None of these VA opinions addressed the Veteran's consistent reports of recurrent tinnitus since service. Further, all of them rely on the absence of corroborating evidence to rule out a nexus between service and current symptoms. For these reasons, the April 2013, July 2016 and June 2017 VA opinions are lack probative value and the Board places little weight on them. The Veteran is competent to identify tinnitus, as this condition is observable by his own senses, and to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). As noted above, tinnitus is a chronic disease under § 3.309(a) and the Board finds no reason to doubt his credibility on the continuation of the ringing in his ears since discharge from active duty. See Fountain, 27 Vet. App. at 272 (clarifying that the Federal Court's decision in Walker does not preclude establishing service connection for tinnitus on the basis of continuity of symptoms, because tinnitus is an "organic disease of the nervous system," which is listed in § 3.309(a)). As such, and resolving any doubt in favor of the Veteran, the Board finds that the Veteran's multiple reports of recurrent tinnitus since service are sufficient to establish continuity of symptomatology since service. Therefore, giving the benefit of the doubt to the Veteran, all elements of service connection for tinnitus are established by competent and credible evidence. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. ORDER New and material evidence having been received, the petition to reopen the claim of service connection for tinnitus is granted. Service connection for tinnitus is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs