Citation Nr: 21065019 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-51 279 DATE: October 22, 2021 ORDER New and material has been submitted to reopen the previously denied claim for entitlement to service connection for tinnitus. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A September 2009 rating decision to which the Veteran was notified in that same month, denied service connection for tinnitus; the Veteran did not perfect a timely appeal with respect to the September 2009 rating decision and no pertinent exception to finality applies. 2. Evidence received since the September 2009 rating decision raises a reasonable possibility of substantiating the claim for service connection for tinnitus. 3. The probative evidence shows the Veteran's tinnitus is related to in-service exposure to acoustic trauma. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the previous denial of the claim for service connection for tinnitus. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On his November 2018 Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing before a member of the Board. A hearing was scheduled for October 2021. In August 2021, the Veteran requested to cancel this hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. New and material has been submitted to reopen the previously denied claim for entitlement to service connection for tinnitus Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A September 2009 rating decision to which the Veteran was notified that same month denied service connection for tinnitus. The Veteran did not perfect a timely appeal with respect to the September 2009 rating and none of the pertinent exceptions to finality applies to this decision, i.e., no additional evidence was received within the one-year appeal period following the September 2009 rating decision and no additional service department records have since been associated with the claims file warranting reconsideration of the claim for service connection for bilateral hearing loss. Therefore, the September 2009 rating decision is final as to the evidence then of record and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. By way of background, the Veteran's submitted his initial claim in May 2009 for service connection for tinnitus. In September 2009, the RO denied the claim as it found that there was no medical evidence showing that the Veteran had a diagnosis of tinnitus that was related to his military service. In April 2018, the RO confirmed and continued the denial for tinnitus because the evidence from outpatient treatment records submitted in connection with the current claim did not constitute new and material evidence that related to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The evidence of record at the time of the only final rating decision addressing the claim for service connection for tinnitus in September 2009 included the service treatment records (STRs) and treatment records from the VA Medical Center. The evidence since the September 2009 rating decision includes a VA examination from September 2018. The September 2018 VA examination relates to an unestablished fact necessary to substantiate his claim, namely a nexus opinion. Thus, the Board finds that the evidence submitted is both new and material, and his claim for service connection for tinnitus is reopened. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is due to exposure to loud noise and acoustic trauma. See February 2018 VA Form 210526EZ, Application for Disability Compensation and Related Compensation Benefits. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active-duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active-duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the September 2018 VA examination, the Veteran reported that he has recurrent tinnitus. Thus, the first element of service connection has been established. As to an in-service event, the Veteran's service treatment records (STRs) are silent as to any complaints or treatment for tinnitus. However, the Veteran is competent to report the event that occurred during service, to include in-service noise exposure. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran noted at the September 2018 VA examination that artillery landed close to him while in Vietnam and he thinks the tinnitus started at that time. He also stated that he had tinnitus when he returned from Vietnam. In the September 2018 Statement of the Case (SOC), the RO found that while the September 2018 VA examiner opined that the Veteran's tinnitus is at least as likely as not due to military noise exposure, noting his report of combat noise exposure including an artillery shell blowing up near him, the STRs and personnel records are negative for any indication of a combat citations which would allow VA to concede that he was exposed to loud noises in a combat situation. The RO continued to deny the claim for tinnitus as it could not be related to an in-service event. Here, the Board finds that there is sufficient evidence that the Veteran was exposed to combat noise. His personnel records document that he served in the Republic of Vietnam from August 1966 to August 1967. While there is no official documentation that he took part in combat, the Board finds the Veteran's testimony regarding his exposure to noise from combat activity during his Vietnam service is competent and credible evidence of such and are consistent with the circumstances of his service. As such, the Board finds that the Veteran's assertions regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus are considered competent and credible lay evidence of such exposure. Accordingly, the second element of service connection has been established. Regarding the third element of service connection, a nexus between the current disability and the in-service injury, the VA examiner found that the Veteran's tinnitus is at least as likely as not (50 percent probability or greater) caused by or a result of military noise exposure. As rationale, the examiner stated that the Veteran's military occupational specialty was cook/food service specialist, which is considered a low probability for hazardous noise exposure. However, the Veteran reported being exposed to combat noise exposure. He fired weapons with his right hand. He worked primarily as a machinist or machinist supervisor during his civilian career. He reported no recreational noise exposure. His entrance and separation audiogram which both revealed hearing well within normal limits from 500-4000 Hz, bilaterally. There were no significant threshold shifts on the separation exam. The Veteran presented with bilateral sensorineural hearing loss. The examiner went on to state the Veteran thinks his tinnitus started after an artillery shell blew up near him while serving in Vietnam. He is certain that he had the tinnitus when he returned from Vietnam. The VA examiner concluded that this supports his claim for tinnitus. Accordingly, the Board finds that the elements of service connection for tinnitus have been met. The most probative medical and other evidence shows the required relationship or correlation between the Veteran's tinnitus and his military service. Service connection is granted for the Veteran's tinnitus as having its onset in service. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.