Citation Nr: 18153949 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-57 898 DATE: November 28, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. Entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. FINDINGS OF FACT 1. An August 2012 rating decision denied service connection for tinnitus; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the August 2012 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for tinnitus. 3. The Veteran’s tinnitus is proximately due to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The August 2012 rating decision denying the claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to secondary service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1968 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 1. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO denied the Veteran’s claim for service connection for tinnitus in an August 2012 rating decision. The Veteran was informed of this decision in the same month, he did not appeal the decision, and new and material evidence was not received within one year of notice of the decision. Thus, the August 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the August 2012 rating decision constitutes new and material evidence in regard to the Veteran’s tinnitus claim. Specifically, the April 2018 VA examiner’s opinion relating the Veteran’s tinnitus to his service-connected bilateral hearing loss. This evidence is new as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for tinnitus and the claim is reopened. Service Connection 2. Entitlement to secondary service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus. As the below discussion is favorable in regard to secondary service connection, no other theory of entitlement will be addressed. Service connection may be established on a secondary basis for a disability that is proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a current diagnosis of tinnitus. He reports tinnitus in his lay statements and to the May 2012, January 2016, and April 2018 VA examiners. Most importantly, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). He is also service-connected for bilateral hearing loss. Accordingly, the first two elements of secondary service connection are established. Regarding the final element, nexus, the only competent opinion of record addressing secondary service connection is in favor of the claim. (The Board notes that the May 2012 VA opinion against the claim is inadequate, as it does address the Veteran’s lay statements regarding the onset of his tinnitus during service and does not address secondary service connection at all). Specifically, the April 2018 VA examiner opined that it was at least as likely as not that the Veteran’s tinnitus was associated with his bilateral hearing loss. Thus, secondary service connection for tinnitus is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel