Citation Nr: 20046445 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 16-56 907 DATE: July 10, 2020 ORDER The application to reopen a claim of service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In October 2012, the agency of original jurisdiction (AOJ) denied the Veteran’s claim of service connection for tinnitus on the basis the disability was not related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the October 2012 rating decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus, the absence of which was the basis of the previous denial. 3. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. The October 2012 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a) 20.1103. 2. Since the October 2012 rating decision, new and material evidence to reopen the claim of service connection for tinnitus has been received and reopening of the claim is warranted. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1965 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision. The Board acknowledges that the Veteran also appealed the denial of service connection for hearing loss in the February 2015 decision. However, in the Veteran’s November 2016 substantive appeal (VA Form 9), the Veteran indicated that he only wished to perfect his appeal with regard to the issue of entitlement to service connection for tinnitus. As such, the Board will not discuss the Veteran’s hearing loss claim. New and Material Evidence Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156(a). 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. Id. 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). Further, 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. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an October 2012 rating decision, the AOJ denied service connection for tinnitus. Specifically, the AOJ explained that the Veteran's service treatment records failed to provide evidence of treatment for, or diagnosis of, tinnitus. Also, a VA medical opinion was provided which indicated that the Veteran’s tinnitus was not likely related to service. The Veteran was notified of the AOJ’s October 2012 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the October 2012 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. In the October 2012 rating decision, the AOJ considered evidence consisting of the Veteran’s DD Form 214; service treatment records (STRs); VA Form 21-526, Veteran’s Application for Compensation and/or Pension received March 15, 2011; two statements in support of his claim received June 28, 2011; VA treatment records; private treatment records from February 2008 to June 2012; and a VA examination report and medical opinion dated on October 5, 2012. The pertinent new evidence received since the October 2012 denial of service connection for tinnitus consists of the Veteran’s supplemental claim for compensation form dated on December 18, 2014 requesting to reopen the claim of service connection for tinnitus; VA treatment records accessed February 9, 2015; the Veteran’s VA Form 9 dated November 15, 2016; and a Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) and private medical opinion, both dated in March 2015. The March 2015 DBQ and private medical opinion indicate that the Veteran’s tinnitus was likely related to service. Therefore, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran’s tinnitus is related to service. The evidence is, therefore, new and material, and the claim of service connection for tinnitus is reopened. Service Connection In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is afforded the claimant. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is a presumption of service connection for certain chronic diseases (including organic diseases of the nervous system, such as tinnitus), if the disease is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a). The Veteran contends that he has current tinnitus that had its onset at the time of or shortly following his separation from service, and which is the result of his exposure to loud noise in service. The Veteran's Certificate of Release of Discharge from Active Duty (DD Form 214) reveals that his military occupation specialty (MOS) was a machine operator. The Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to service. In a May 1965 STR, the Veteran was given an enlistment examination. The clinical evaluation revealed that his ears and drums were normal. The Veteran also denied ever having ear, nose or throat trouble; running ears; or ever wearing a hearing aid. See October 2016 STR-Medical, p.2;4. In April 1968, the Veteran was given a discharge examination. The clinical evaluation revealed the Veteran’s ears and drums were normal. Furthermore, the Veteran denied ever having ear, nose or throat trouble; running ears; or hearing loss, or ever wearing a hearing aid. Also, there was no mention of tinnitus. See October 2016 STR-Medical, p.10. In a May 2010 private treatment note, a clinician indicated that the hearing, tympanic membrane and ear canal were normal in both of the Veteran’s ears. See June 2012 Medical Treatment Record-Non-Government Facility, p.26. In March 2011, the Veteran submitted an application for compensation or pension. The Veteran reported that the ringing in his ears started in Vietnam, when he worked with heavy equipment. The Veteran stated that the ringing continued to worsen over the years. See March 2011 VA 21-526 Veterans Application for Compensation or Pension, p.6. In June 2011, the Veteran submitted statements in support of claim. The Veteran reported that in 1968 a doctor told him there was nothing that could be done regarding the ringing in his ears. The Veteran stated that he did nothing as a result and did not seek treatment by a doctor until September 2008. The Veteran stated that the doctor cleaned his ears and suggested he get hearing aids. See June 2011 VA 21-4138 Statement In Support of Claim, p.1. The Veteran’s sister also submitted a statement in June 2011, in which she indicated that the Veteran reported ringing in his ears after he was discharged from service. In October 2012, the Veteran was afforded a VA hearing loss and tinnitus examination. The examiner reviewed the Veteran’s claims file, considered his reported history, and conducted an evaluation. The examiner noted that the Veteran had a diagnosis of recurrent tinnitus. The Veteran reported that he experienced constant bilateral tinnitus which began when he got out of service. The Veteran reported that he experienced noise exposure from diesel engines and heavy equipment. Furthermore, he indicated that he only experienced noise exposure while stationed in Vietnam for one year. The Veteran indicated that he experienced the noise daily and was not provided hearing protection. He further reported 10 years of occupational noise exposure while working with concrete, as a civilian. The Veteran reported working in a mill for 5 years and that he was required to wear hearing protection and get annual hearing screenings. He described the tinnitus as a locust sound which he ignored. He indicated that when there was silence, he noticed the tinnitus more often. The examiner concluded that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The rationale given was that there were no reports or complaints of tinnitus or ear issues in his service treatment records and that the Veteran had a more extensive history of noise exposure as a civilian, than while in service. The examiner also stated that tinnitus did not impact the Veteran’s ordinary conditions of daily life, including his ability to work. In March 2015, the Veteran submitted a hearing loss and tinnitus DBQ and a private opinion, both completed by audiologist J. Proctor, Au.D. Dr. Proctor noted that the Veteran had recurrent tinnitus, but she indicated that she did not review his claims file. The Veteran reported that he ran heavy equipment while in service, and that no hearing protection was provided unless he was using machine guns or grenade launchers. The Veteran further reported that after service he was exposed to noise. The Veteran indicated the noise exposure included working in a warehouse unloading box cars and filling trucks. He also said that he worked with noisy battery powered forklifts, without hearing protection. In addition, the Veteran stated that he worked in a lumber house, where hearing tests and hearing protection was mandatory. Lastly, the Veteran indicated that he had a trade in construction and carpentry after service and sometimes wore hearing protection. Moreover, Dr. Proctor referenced medical literature from the American College of Occupation and Environmental medicine which stated that noise exposure without hearing protection can cause and/or contribute to hearing loss and tinnitus. The Veteran complained of tinnitus during the evaluation, and stated that the onset was around 1968 and that it had worsened over the years. The Veteran reported that he occasionally mistook the tinnitus for other sounds and that he had difficulty understanding people. Dr. Proctor concluded that it was more likely than not that the Veteran’s tinnitus was related to military noise exposure because excessive noise was repeatedly encountered without the use of hearing protection. In a November 2016 VA Form 9, the Veteran indicated that he had buzzing in his ears since March of 1968. The Veteran stated that he was told by a doctor that there was nothing he could do to correct it. He stated that the condition had worsened and that the first thing in the morning he heard was buzzing in his ears. The Veteran indicated that the buzzing occurred all day and hearing aids did nothing to help it. Furthermore, the Veteran noted that he ran moving equipment 12 hours a day in Vietnam with loud diesel engines. See November 2016 Form 9, p.1. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation."). Moreover, to the extent that tinnitus is capable of lay observation, the Veteran is competent to report his symptoms. Therefore, his assertions regarding in-service onset and continuing symptoms thereafter are both competent and probative. The Board acknowledges the October 2012 VA examiner’s opinion, but notes that she provided an inadequate rationale, especially in light of the Veteran's reports of a continuity of tinnitus symptomatology in the years since 1968 which were not adequately acknowledged and considered by the examiner. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, the October 2012 opinion is of limited probative value. The March 2015 opinion by Dr. Proctor is based upon an examination of the Veteran, a review of medical literature, and consideration of the Veteran’s reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Overall, the Board finds that the Veteran provided competent and credible lay statements during the October 2012 and March 2015 examinations, which were consistent with the MOS noted above. Accordingly, in addition to the medical opinions noted above, there is lay evidence of in-service exposure to loud noises during active service, onset of tinnitus around the time of or within a year of discharge from service, and a continuity of tinnitus symptomatology since its onset. The Veteran’s assertions regarding the onset of tinnitus and continuing symptoms in the years since its onset are both competent and credible. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, Associate 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.