Citation Nr: 1823902 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 17-32 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran had active service from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Veterans Law Judge by way of videoconference in April 2018. A transcript of the hearing is of record. 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) (2014). FINDINGS OF FACT 1. Service connection for bilateral tinnitus was initially denied in an unappealed February 2006 rating decision. Evidence received since that decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 2. Resolving reasonable doubt in the Veteran's favor, tinnitus is related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral tinnitus. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Since the February 2006 rating decision, new medical and lay evidence has been associated with the claims file. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Specifically, a February 2016 VA examination and the Veteran's Board hearing testimony have been added to the claims file. These records relate to previously unestablished facts. Further, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. For these reasons, reopening of the previously denied claim of service connection for bilateral tinnitus is warranted. Service Connection for Bilateral Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Service treatment records are silent for any complaints of tinnitus. In July 2005, the Veteran was seen at a private clinic for a complete audiological evaluation with a primary complaint of hearing loss and bilateral tinnitus. The Veteran reported exposure to considerable levels of noise while performing duties via radio communications. In addition, he stated that he fired M-16's. All of this noise exposure was without use of hearing protective devices. The audiologist opined that it is more likely than not that bilateral tinnitus was possibly related to his exposure to excessive noise levels while on active duty. In December 2005, the Veteran was afforded a VA audiological examination. The examiner opined that in the absence of significant outer hair cell damage at discharge and no complaints of tinnitus in service records, tinnitus is not at least as likely as not related to military noise exposure. The Veteran was afforded a VA audiological examination in February 2016. The examiner opined that his tinnitus is less likely than not caused by or a result of military noise exposure. The examiner stated that delayed onset hearing loss and tinnitus due to noise exposure are unlikely to occur. Further, the examiner stated that in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist and thus, the Veteran's hearing loss and reported tinnitus are less likely as not caused by or a result of noise exposure while in service. The Veteran asserts that the onset of tinnitus was in service and present at discharge, with continuity thereafter. His lay testimony is competent to establish the presence of tinnitus. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He denied post-service noise exposure while working at the post office for over 40 years. The VA opinions are assigned limited probative weight. The rationales primarily focused on hearing loss and not tinnitus. Further, they did not adequately consider the Veteran's assertion of continuity of tinnitus since service. The July 2005 private opinion is also assigned limited probative weight as it was couched in speculative terms. The Veteran's testimony is consistent with evidence showing noise exposure in service. 38 U.S.C. § 1154(a) (2014). The Board further finds the Veteran's testimony that he started to have ringing in his ears while he was still in service to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran's lay testimony and July 2005 private audiologist's opinion provide an adequate basis on which to grant service connection for bilateral tinnitus. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for bilateral tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral tinnitus. Resolving reasonable doubt in the Veteran's favor, service connection for bilateral tinnitus is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs