Citation Nr: 21074963 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-05 166 DATE: December 16, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hemorrhoids is remanded. FINDINGS OF FACT 1. In a February 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of service connection for tinnitus; this decision was not appealed and became final. 2. The evidence received since the February 2009 rating decision is new and material for the claim. 3. Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. CONCLUSIONS OF LAW 1. The February 2009 rating decision, which denied the Veteran's request to reopen his previously denied claim of service connection for tinnitus, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 2. Evidence received since the February 2009 rating decision in support of the claim of service connection for tinnitus is new and material; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to February 1985 in the United States Air Force. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Claim to Reopen New and material evidence to reopen a claim of service connection for tinnitus. The Veteran seeks to reopen a claim of entitlement to service connection for tinnitus. The claim was denied in a February 2009 rating decision because there was no evidence of tinnitus manifesting during service or in close proximity to service. The Veteran did not initiate an appeal of that decision or submit new and material evidence within one year and the decision became final. In the February 2019 rating decision on appeal, the AOJ reopened the claim and denied on the merits. Despite the AOJ's actions, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995). Evidence added to the record since the February 2009 decision includes VA and private treatment records and statements from the Veteran describing in-service onset of tinnitus type symptoms and clarifying/disputing prior characterizations of tinnitus onset. The Board finds that the additional evidence submitted since February 2009, specifically the Veteran's statements, is new and relates to an unestablished fact, specifically nexus to service. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim for service connection for tinnitus is reopened. Service Connection Service connection for tinnitus The Veteran contends that his tinnitus is etiologically due to regular exposure to jet engine, aircraft engine, and ground power unit noise during active-duty service. The Board concludes that the Veteran has a current disability that began during active service and is related to the noise exposure described above. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The record shows the Veteran has a current diagnosis of tinnitus. Thus, the question becomes whether the current disability is related to service. On this question there are no adequate medical opinions, but the Veteran has provided credible lay statements on the origin of his tinnitus. For VA purposes tinnitus is a disability that is capable of observation and diagnosis by a lay person, therefore the Veteran's statements are also competent. See Charles v. Principi, 16 Vet. App. 370 (2002). Evidence against the claim includes a February 2019 VA examiner's negative opinion. The Board affords that opinion little probative value because the examiner did not consider the Veteran's competent report that he would experience temporary buzzing in his ears after each significant noise exposure event during service and that his tinnitus symptoms began half-way through his active-duty service. The Veteran also directly contradicted the examiner's statement that tinnitus began in the years after service. The Veteran explained that the examiner did not ask the Veteran to identify the date his tinnitus began and that the examiner's conclusion that it was the "late 90's" is incorrect, as this is when his symptoms started getting more severe. He confirmed that the symptoms had persistently become worse since service, but certainly began during active duty. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current tinnitus arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for hemorrhoids The claim is remanded to obtain a medical opinion. The Veteran points out that his STRs clearly document in-service hemmorhoids and his exit examination notes occasional swelling of hemorrhoids, which were characterized as resolved with no complications or sequela. The Veteran argued that despite the fact that the condition was "resolved" at the time of separation he still experiences residuals associated with the hemmorhoids. See February 2019 Notice of Disagreement. Private treatment records appear to corroborate this claim. Considering the Veteran's credible statements and the medical evidence of record, he should be afforded a VA examination with opinion on this issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his claimed hemorrhoids and any residuals. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following: Is it at least as likely as not that any current hemorrhoids, or residuals of hemorrhoids, are related to service, including the documented in-service hemorrhoids? Why or why not? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.