Citation Nr: 1803662 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 17-10 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and A.T. ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to November 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran and A.T., in Indianapolis, Indiana, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. 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. In an October 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for tinnitus; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the October 2010 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus, and raises a reasonable possibility of substantiating the claim. 3. The competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus had its onset in or is otherwise related to his period of active service. CONCLUSIONS OF LAW 1. The October 2010 decision denying the claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). 2. New and material evidence has been received since the October 2010 decision to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As the issues decided herein are being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed. II. New and Material Evidence Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers, or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for tinnitus. In October 2010, the AOJ denied the claim of service connection for tinnitus on the grounds that there were no complaints of tinnitus in service and that the evidence failed to demonstrate a nexus between the current disability and service. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within the appeal period; therefore, the October 2010 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the October 2010 decision. In June 2017, the Veteran testified that ringing in his ears began in service. He further testified that he has experienced ringing in his ears on an intermittent basis since service. 06/21/2017, Hearing Transcript. The Board finds that this evidence is new and relevant to whether the Veteran's tinnitus had its onset in or is otherwise related to his period of active service. Therefore, the claim of service connection for tinnitus is reopened. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). III. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be established on a presumptive basis for the chronic diseases set forth in 38 C.F.R. § 3.309(a), including tinnitus if there is evidence of acoustic trauma in service. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (finding tinnitus to be an "organic disease of the nervous system," which is listed in 38 C.F.R. § 3.309(a)). The chronic diseases set forth in 38 C.F.R. § 3.309(a) will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). After review of the record, the Board finds that the criteria for service connection for tinnitus have been met. The record demonstrates a current diagnosis of tinnitus. Thus, the Board finds competent evidence of a current disability. The record demonstrates that the Veteran's military occupational specialty (MOS) was field artillery crewman. 03/16/2016, Certificate of Release. In June 2017, the Veteran testified that he was exposed to acoustic trauma as part of his MOS duties; specifically, he recalled a July 1983 incident in which an 8-inch self-propelled howitzer went off from 50 to 75 feet away. 06/21/2017, Hearing Transcript. The Veteran's testimony was corroborated by a statement received in June 2017 from a Marine who was with the Veteran at the time of the July 1983 incident and recalled that, as a result, their ears started bleeding and ringing immediately and they lost their hearing for several hours afterward. 06/26/2017, Buddy Statement. Accordingly, the Board finds competent evidence of acoustic trauma in service. The Veteran testified that he began experiencing ringing in the ears during his period of active service, and that it has continued since. He stated that he had intermitting ringing in the ears prior to discharge, and that the symptoms increased in severity, duration, and frequency approximately two years after discharge. 06/21/2017, Hearing Transcript. The Board recognizes the September 2010 VA examiner's opinion that tinnitus is more likely than not related to non-service-connected hearing loss. However, the examiner noted that the date of onset is unknown. Additionally, the Board assigns the opinion little probative weight, as the examiner was unable to consider the Veteran's June 2017 testimony that ringing in his ears had its onset during service. 09/22/2010, VA Exam; see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, as the disability in question, tinnitus, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established solely on the basis of continuity of symptomatology. Walker, 708 F.3d at 1338-39 (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). Hence, any doubt on the material issue of nexus is resolved in the Veteran's favor and the claim is granted. ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for tinnitus is granted. Service connection for tinnitus is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs