Citation Nr: 18151740 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-38 886 DATE: November 20, 2018 ORDER New and material evidence having been received to reopen the claim of service connection for tinnitus, the claim is reopened. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence received since the last prior denial of service connection for tinnitus was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 2. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed recurrent tinnitus while on active duty. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for tinnitus, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Charles v. Principi, 16 Vet. App. 370 (2002); Fountain v. McDonald, 27 Vet. App. 258 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1967 to November 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. A transcript of that hearing is of record. The Board acknowledges that the RO determined new and material evidence had not been received to reopen the Veteran’s claim of service connection for tinnitus. However, the Board finds that the evidence received since the last prior denial, to include the Veteran’s testimony of recurrent tinnitus since service, constitutes new and material evidence in accord with 38 C.F.R. § 3.156(a). Therefore, the claim is reopened, and the Board will address the merits of the underlying service connection in this decision. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). 1. Service connection for tinnitus In this case, the Veteran has contended, to include at his February 2018 hearing, that he developed recurrent tinnitus while on active duty. The Board finds his testimony on this matter to be credible. The Board further observes that the Veteran’s lay testimony is of particular importance in this case as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus, lay testimony plays an unusually important role in these determinations. This is of crucial importance in the case on appeal. The medical evidence of record shows that the Veteran has a current diagnosis of tinnitus. The dispute is over the etiology of the disorder, not its existence. The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The Court recently held that tinnitus was a disease, rather than merely a symptom, and 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.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, the Board acknowledges that VA examiners promulgated opinions in 2007 and 2017 against the Veteran’s current tinnitus being etiologically linked to service. However, the 2007 VA medical opinions appear to focus upon whether there was evidence of hearing loss during active service, while the 2017 opinion focused upon whether tinnitus was due to in-service medication. Neither opinion appears to have given adequate consideration to the Veteran’s competent and credible testimony of recurrent tinnitus which originated during service, particularly in light of the holdings of Charles, supra, and Fountain, supra. The Board further notes the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. As stated above, the Veteran’s lay statements are generally sufficient for the purposes of determining the diagnosis and when tinnitus began. See Charles, supra. Even when there is no competent medical evidence of record that addresses when a claimant’s tinnitus began, his statements alone may be considered competent evidence to make such a determination. Id. at 374. Accordingly, the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus and the credible lay evidence of record shows that it began in military service and continued thereafter. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for tinnitus. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel