Citation Nr: 1815787 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-36 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim of service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Marine Corps from March 2006 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO), which confirmed and continued the previously denied claim of entitlement to service connection for tinnitus. The Veteran testified before the undersigned Veterans Law Judge in an August 2017 videoconference hearing. A copy of the hearing transcript has been associated with the record. FINDINGS OF FACT 1. In an unappealed May 2012 rating decision, the RO denied the claim of service connection for tinnitus. 2. Evidence received since the May 2012 rating decision relates to unsubstantiated facts in the previously denied claim, and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 3. Resolving all doubt in the Veteran's favor, the currently demonstrated tinnitus was caused by in-service exposure to excessive and harmful noise in connection with the Veteran's duties. CONCLUSION OF LAW 1. The May 2012 rating decision which denied service connection for tinnitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received subsequent to the May 2012 rating decision is new and material to reopen service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303, 20.1105 (2017). 3. The criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide veterans with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. New and Material Evidence Law and Analysis The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). New evidence means 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO previously denied service connection for tinnitus in an unappealed May 2012 rating decision. In that decision, the RO found that the evidence, including the Veteran's service treatment records, did not show an event, disease or injury in service. The Veteran did not appeal May 2012 rating decision and no relevant medical evidence addressing that issue was received within one year of notice of the denial; thus, the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). For these reasons, the Board finds that new and material evidence in this case must tend to establish that the Veteran's experienced an in-service occurrence of tinnitus. New evidence received subsequent to the May 2012 rating decision pertinent to the appeal to reopen service connection for tinnitus includes private treatment records, a VA examination, lay statements and testimony. In pertinent part, the Veteran's August 2017 videoconference hearing testimony shows that he experienced symptoms of tinnitus in service, which were intermittent at the beginning, but became constant before he left service. The Board finds the Veteran's testimony credible and finds that the evidence submitted is both new and material, relating to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for tinnitus. Because the Veteran has submitted evidence which tends to show that currently diagnosed tinnitus was incurred in or caused by service, the Board finds that the low threshold for reopening service connection, as identified in Shade, has been met. Shade, 24 Vet. App. at 118. For these reasons, the Board finds that new and material evidence sufficient to reopen service connection for tinnitus has been received, and the claim is reopened. See 38 C.F.R. § 3.156 (2017). Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Tinnitus is a "chronic disease" included under 38 C.F.R. § 3.309(a), and therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (noting that VA has characterized tinnitus as an organic disease of the nervous system, at a minimum, when there is evidence of acoustic trauma). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2017). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (20167). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that currently diagnosed tinnitus is related to hazardous noise exposure in service. Specifically, during an August 2017 videoconference hearing, the Veteran testified that he was exposed to loud noise in service while working as an Osprey air framer on the flight line, and that he noticed tinnitus would come and go but then became constant upon service separation. In December 2011 and March 2014 VA audiological examinations, the Veteran was diagnosed with tinnitus based on his reports of experiencing periodic tinnitus in his ears. The Court of Appeals for Veterans Claims (Court) has found that a lay person is competent to identify tinnitus, which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the Board finds that the Veteran has a current diagnosis of tinnitus. The Board additionally finds that the Veteran experienced acoustic trauma in service. In his August 2017 videoconference hearing, the Veteran indicated that he worked as an Osprey air framer in service, where he worked on the flight line. The Veteran's DD Form 214 shows a Military Occupational Specialty (MOS) of Aircraft Mechanic (6165). The Board notes that the Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that Veterans with a duty MOS of aircraft maintenance have a high probability of exposure to hazardous noise. The Board finds that the Veteran had some degree of post-service occupational and recreational noise exposure with the use of hearing protection. Within a December 2011 VA audiological examination, the Veteran reported a post-service history of working around impact guns at a car dealership with the use of ear protection. He also reported hunting, practice shooting and woodworking with ear protection. The Board finds that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed tinnitus is related to his conceded hazardous noise exposure in service. While the Veteran's service treatment records are negative for complaints of tinnitus, the fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds no reason to question the veracity of the Veteran's competent report that his ringing in the ears began after in-service exposure to acoustic trauma. Caluza, 7 Vet. App. at 506. Thus, the Veteran's statements as to acoustic trauma in service, as well as his statements that his tinnitus began in service and has continued since service, are credible. Accordingly, the Veteran is both competent and credible to report a history of tinnitus that began in service and has continued since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A private medical record dated April 2013 indicates that the Veteran's bilateral tinnitus was at least as likely as not due to military noise exposure. The doctor stated that the Veteran's audiogram results were consistent with noise exposure. The Veteran was afforded VA audiological examinations in December 2011 and March 2014. The December 2011 VA examiner opined that the Veteran's tinnitus of the left ear was less likely than not related to service as hearing in that ear was within normal range, but that tinnitus of the right ear was at least as likely as not related to his service noise exposure because of the significant threshold shift of the right ear from entrance to separation test results. The March 2014 VA examiner opined that the Veteran's tinnitus was less likely than not incurred in or caused by service because there was no documented of complaints of tinnitus in the Veteran's military records. The Board cannot find the VA examination opinions of record to be probative insomuch as they did not adequately consider the Veteran's lay statements that his tinnitus began in service after his exposure to conceded hazardous noise. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The Veteran's competent and credible statements regarding onset of tinnitus, along with the private opinion attributing tinnitus to noise exposure, are more probative than the December 2011 and March 2014 VA examination reports. After resolving reasonable doubt in favor of the Veteran, the Board finds that his tinnitus had its onset in service. Accordingly, service connection for tinnitus is warranted. 38 C.F.R. § 3.303(b) (2014); Fountain, 27 Vet. App. 258 (2015). ORDER New and material evidence has been received and the claim for service connection for tinnitus is reopened. Service connection for tinnitus is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs