Citation Nr: 1808463 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-43 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss. 4. Entitlement to service connection for hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1955 to April 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the New York, New York Department of Veterans Affairs (VA) Regional Office (RO). 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. An unappealed November 2004 rating decision denied service connection for tinnitus; evidence received since that decision was not of record at that time; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim. 2. The competent and credible evidence of record establishes that the Veteran's tinnitus began in service and has persisted since that time. 3. An unappealed August 2000 Board decision denied service connection for hearing loss; evidence received since that decision was not of record at that time; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim. 4. The competent and credible evidence of record establishes that the Veteran's hearing loss began in service and has persisted since that time. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 3. New and material evidence has been received to reopen the claim for service connection for hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Although rating decisions that are not appealed within one year become final, they may be reopened and reviewed if new and material evidence is received. See 38 U.S.C. §§ 7105, 5108; 38 C.F.R. § 20.200 (2017). Regardless of the RO's findings, the Board must adjudicate de novo whether new and material evidence has been submitted because the matter goes to the Board's jurisdiction. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Evidence is "new" when it was not previously submitted and it is "material" when-by itself or with previous evidence of record-it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The phrase "raises a reasonable possibility of substantiating the claim" is a low threshold, to be viewed as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). During this analysis, the evidence must be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an August 2000 decision, the Veteran's claim for service connection for hearing loss was denied because there was no evidence that the Veteran's hearing loss began in service or was related to events in service. Moreover, that decision found that the Veteran was "[not] competent to render an opinion regarding diagnosis or [cause]." The Veteran did not appeal the August 2000 decision and did not submit additional evidence within one year of that decision. Therefore, the August 2000 decision became final based on the evidence then of the record. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. By way of procedural history, the Veteran applied to reopen the claim in May 2004 but was denied in November 2004 because "the condition was not incurred in or aggravated by military service." In a November 2004 rating decision, the RO denied the Veteran's claim for service connection for tinnitus because there was no evidence that the Veteran's tinnitus began in service or related to events in service. The November 2004 decision is final based on the evidence then of the record because the Veteran did not appeal or submit new evidence within one year of that decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. The Board notes that the Veteran's service treatment records (STRs) have not been available because they were determined to be "fire related" and unable to be retrieved or reconstructed. The Board understands the Veteran's frustration in reporting occurrences in service without having records to corroborate his testimony. In cases where a claimant's records have been lost or destroyed, VA has a "heightened" duty to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). In his most recent application to reopen, the Veteran has presented a statement from his wife regarding the onset his hearing loss and tinnitus symptoms. The record shows that she was married to the Veteran soon after he left service. Her competent testimony is new evidence that has not before been considered. Further, the evidence is material because it directly relates to whether or not the Veteran's hearing loss and tinnitus started in service. The Veteran and his wife are both competent to report observable symptoms and, further, can establish that an observable chronic disability began in service and persisted since that time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). New and material evidence having been received, the claims for service connection for hearing loss and tinnitus are reopened. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the present case, the Board finds that the Veteran has tinnitus. Private treatment records as well as VA examinations have shown that the Veteran has ringing and "noise" in his ears. The Board also notes that the Veteran currently has a hearing loss disability as defined for the purposes of VA compensation in 38 C.F.R. § 3.385 (2017). [see, e.g., 1997 VA audiological examination]. The Board also finds that the Veteran experienced acoustic trauma from an explosion in service. The Veteran is competent and credible to report that observable event. Jandreau, 492 F.3d at 1372. Turning to the question of whether there is a nexus, or causal link, between the current disabilities and service, the Board finds that both the Veteran's hearing loss and tinnitus were caused by the explosion in service. The Veteran stated that "noise" in his ears began after the explosion in service. His wife stated that he had ringing in his ears after service. Further, private treatment records reflect a consistent reporting on the part of the Veteran that his ringing in his ears has continued for many years. The Veteran stated also that his hearing was affected immediately after the in-service explosion and reported a long history of hearing loss since service. While some examiners have provided negative nexus opinions or were unable to provide opinions, they failed to consider the Veteran's competent and credible reporting of symptoms and events in service and of the persistence of symptoms after service until the present. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based; thus, the Board may reject a medical opinion based on an inaccurate factual predicate). Therefore, the Board finds the Veteran's competent and credible testimony more persuasive than the negative or speculative opinions. Service connection is warranted for tinnitus and hearing loss. ORDER New and material evidence has been received that is sufficient to reopen the claim for service connection for tinnitus; the claim is reopened. Service connection for tinnitus is granted. New and material evidence has been received that is sufficient to reopen the claim for service connection for hearing loss; the claim is reopened. Service connection for hearing loss is granted. ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs