Citation Nr: 20009933 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-24 169 DATE: February 6, 2020 ORDER The request to reopen a previously denied claim for service connection for tinnitus is granted. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for tinnitus was previously denied by a March 2016 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the March 2016 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to a previously unestablished fact necessary to substantiate the claim for service connection for tinnitus, and raises a reasonable possibility of substantiating the claim CONCLUSIONS OF LAW 1. The March 2016 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from June 1982 to June 1985 and from February 1986 to February 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision. The request to reopen a previously denied claim for service connection for tinnitus To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for tinnitus was denied in a March 2016 rating decision. The basis of that denial was that tinnitus was not incurred in service, nor was it secondary to a hearing loss disability. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal that decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Since the March 2016 rating decision, additional evidence has been received. In a March 2018 statement, the Veteran described a training exercise during service in which he was exposed to the noise of a grenade explosion without hearing protection. He reported experiencing ringing in his ears for several days afterward. This evidence is new because it was not part of the record at the time of the prior denial, and it is material because it relates to the previously unestablished element of whether tinnitus was incurred in service. Therefore, the claim is reopened. However, as discussed below, further development is warranted. REASONS FOR REMAND Entitlement to service connection for tinnitus is remanded. As discussed above, the Veteran described an incident in service where he experienced ringing in his ears after a grenade explosion. He further indicated that he did not report this ringing because it resolved after a few days and he was encouraged not to go to sick call unless it was absolutely necessary. In a separate April 2018 statement, he indicated that he never complained about injuries that occurred during service. The Board does not find these statements to be credible for several reasons. First, during a February 2016 VA examination, the Veteran stated that he did not recall an onset date of tinnitus, and he did not otherwise mention having tinnitus in service, which conflicts with his March 2018 statement. Second, contrary to his report about not seeking treatment in service unless necessary, a review of his service treatment records shows that he was treated for a variety of complaints, including a cough, tingling in the urethra, and a wart on the left hand. Most notably, he was seen in September 1983 for deafness and pain after reportedly getting water in his right ear. In other words, he actively reported various health concerns, including those related to the ears, without any mention of tinnitus. This strongly suggests that tinnitus was not present during service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Finally, while he did not specify a date in which the tinnitus in service allegedly occurred, his records include examinations in June 1984, April 1985, October 1985, and January 1990 which showed normal findings. He also denied a history of any ear trouble during the latter two examinations. For these reasons, his statement regarding tinnitus in service is not credible. Nevertheless, a VA opinion is necessary to determine whether current tinnitus is related to the possible infection diagnosed in September 1983 following the Veteran’s complaint of pain and deafness. The examiner should also consider whether tinnitus is related to noise exposure in service, which the Veteran described in detail as part of his March 2018 statement. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tinnitus is at least as likely as not related to an in-service injury, event, or disease, including a possible ear infection documented in September 1983 and/or in-service noise exposure as described in the Veteran’s March 2018 statement. Katharine Marenna Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.