Citation Nr: A21019152 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 200520-86506 DATE: December 1, 2021 ORDER New and relevant evidence having been received, readjudication of the issue of entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT Some of the evidence received since issuance of an April 2020 rating decision was not previously of record and tends to prove or disprove a matter at issue in the claim. CONCLUSION OF LAW The criteria for readjudication of the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156; 3.2501(a)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from August 1979 to September 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. New and Relevant Evidence A claimant who disagrees with a prior VA decision may file a supplemental claim regardless of whether the claim is pending or has become finally adjudicated. 38 C.F.R. § 3.2501. If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.156. Relevant evidence is evidence that tends to prove or disprove a matter at issue in a claim, and it includes raising a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). Here, in April 2020, the AOJ readjudicated the Veteran's claim for service connection for tinnitus and confirmed and continued a prior denial. The AOJ noted that the Veteran reported no complaints of tinnitus during a February 2020 VA examination. Later that month, the Veteran filed a Supplemental Claim (VA Form 20-0995). In accompanying correspondence, he stated that he did, in fact, describe tinnitus during the February 2020 VA examination. The Board finds that this new statement is relevant, as it tends to prove or disprove a matter at issue in the Veteran's claim. Accordingly, the criteria for readjudication of the claim of entitlement to service connection for tinnitus are met, and the claim is granted to that extent. REASON FOR REMAND The issue of entitlement to service connection for tinnitus is remanded to correct a duty to assist error that occurred prior to the May 2020 rating decision on appeal. 38 C.F.R. § 20.802(a). Review of the record shows that a VA medical opinion was requested for the Veteran's tinnitus claim in February 2020. In March 2020, a VA audiologist acknowledged the Veteran's in-service noise exposure but stated that the Veteran's current subjective tinnitus was less likely than not related to service, because he did not report tinnitus during a February 2020 VA examination. Prior to issuance of the rating decision on appeal, the Veteran clarified that he did report tinnitus during the February 2020 VA examination. Moreover, the Veteran had reported tinnitus in the record prior to that examination, and the examiner apparently did not consider that lay evidence. Due to the inadequacies in the March 2020 VA medical opinion, remand is required. The matter is REMANDED for the following action: Send the claims file to an audiologist for review. If a new examination is deemed necessary to respond to the question posed, one should be scheduled. After reviewing the claims file, the examiner is asked to address the following: Is it at least as likely as not (50 percent or better probability) that the Veteran's recurrent tinnitus is related to his conceded in-service noise exposure? Please explain why or why not, specifically considering and discussing the Veteran's descriptions of his current tinnitus, to include his report that he did not have tinnitus until he entered the Air Force. A complete rationale for the opinion rendered must be provided. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why it is so. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.