Citation Nr: 18142381 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-10 771 DATE: October 15, 2018 ORDER The application to reopen the claim of service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an increased schedular rating for radiculopathy of the left leg (claimed as cramps) currently evaluated at 10 percent disabling is remanded. FINDINGS OF FACT 1. In an unappealed April 2007 rating decision, the RO denied service connection for tinnitus. 2. The evidence received since the April 2007 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus. 3. Tinnitus is attributable to acoustic trauma in service. CONCLUSIONS OF LAW 1. Since the April 2007 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for tinnitus; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 2. Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active duty service from March 1967 to April 1970, from December 1972 to September 1988, and from September 1988 to March 1990, to include wartime service in Vietnam. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In this case, the Veteran’s detailed statements as well as the records presented in connection with his claim to reopen constitute new and material evidence, and the claim is reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). Entitlement to service connection for tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. In general, to establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran, who served in the Navy and Coast Guard as outlined above, asserts that he has had ringing in his ears or tinnitus since his exposure to acoustic trauma while in the Navy and it has continued since that time. He reported his tinnitus has been continuous since his time in Vietnam, when he served on small boats with loud engines and was exposed to constant artillery fire. He detailed his assertions in his May 2015 notice of disagreement as well as in his October 2014 personal statement. He explains that, despite what the VA examiner wrote down in the 2015 exam about just noticing tinnitus in the last 5 years, it has been continuous since service in Vietnam and he did not complain because he thought he just had to live with it. Essentially, he explained that it became worse in recent years but had been present and bothersome since service. He reiterated these contentions in his March 2016 substantive appeal. The Veteran has a current diagnosis of tinnitus, and in any event, is competent to identify the existence of this disorder because it is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, it was manifest in service, and there has been continuity of the same symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). While the Veteran did not actually complain of tinnitus or ringing in the ears during active service, it is accepted that he had exposure to acoustic trauma as described by him, consistent with his naval and Coast Guard duties. He has credibly reported that he first noted it in service after exposure to the aforementioned naval acoustic trauma. As ringing in the ears is capable of lay observation, and his statements are credible and entitled to probative weight because they are internally consistent and consistent with other evidence of record, continuity of symptomatology is established. The Board acknowledges that the AOJ has cited to a VA examiner’s observation that tinnitus began recently. However, the Board finds the Veteran’s clarification adequate, and reiterates that tinnitus is capable of lay observation. His statements as to continuity suffice in his case; he has satisfactorily explained that the tinnitus began during his Vietnam tour and continued since that time. The Board concludes that tinnitus has been present since that period of service. REASONS FOR REMAND Entitlement to an increased schedular rating for radiculopathy of the left leg (claimed as cramps) currently evaluated at 10 percent disabling is remanded. In May 2015, the Veteran submitted a notice of disagreement asserting that his service connected left leg cramps had increased in severity and that an increased rating in excess of 10 percent is warranted. In light of those assertions, a new examination is warranted. The matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of his left leg. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should provide a full description of all symptoms and manifestations associated with the Veteran’s left leg cramps and make a determination as to whether his condition has increased in severity. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The AOJ must also ensure that the examiner documents consideration of the electronic claims file. (Continued on the next page)   5. If the report is insufficient, the AOJ must return it to the examiner for necessary corrective action as appropriate. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel