Citation Nr: A21020199 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 211124-200826 DATE: December 17, 2021 ORDER New and relevant evidence was received to warrant the readjudication of the claim for entitlement to service connection for a tinnitus disability, and to that limited extent only, the claim is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. New evidence was received after the July 2019 and January 2020 denials that is relevant to the issue of entitlement to service connection for a tinnitus disability. 2. The evidence is at least in equipoise as to whether the Veteran's tinnitus disability is related to his active service. CONCLUSIONS OF LAW 1. New and relevant evidence sufficient to reopen the claim having been received, the criteria for the readjudication of the claim of entitlement to service connection for a tinnitus disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1) (2021). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a tinnitus disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to February 1968, with subsequent service in the Air Force Reserve through April 1996 with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2020 and March 2021 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). On June 30, 2020, the Veteran's representative submitted a Privacy Act request seeking copies of the Veteran's records. On March 8, 2021, VA responded to the representative with a copy of the Veteran's entire claims file at the time. As such, the Board considers that Privacy Act request to be satisfied and will thus proceed with this adjudication. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019, as here. See 38 C.F.R. § 3.2400(a)(1) (the modernized review system applies to all claims for which VA issues notice of an initial decision on or after the effective date of the modernized review system). This decision has been written consistent with the new AMA framework. The Veteran submitted a series of supplemental claims, in December 2018 and which was adjudicated in July 2019, another supplemental claim in August 2019 which was adjudicated in January 2020, and a request for higher level review in July 2020, which was adjudicated on December 2, 2020 and is the rating decision on appeal in this Board decision. The AMA does not include any limitations on a claimant's ability to file supplemental claims, as long as new and relevant evidence is provided or identified with each supplemental claim. 38 C.F.R. §§ 3.2500(c), 3.2501. However, in order to use supplemental claims to continuously pursue review of an issue and thereby protect the earliest possible effective date in the event of an award of benefits, the supplemental claims must be filed within one year of notification of the last AOJ or Board decision. 38 C.F.R. § 3.2500(h). New and relevant evidence received by VA before it issues its decision on a supplemental claim will be considered as having been filed in connection with the claim. On November 24, 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and selected the Direct Review option; 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. As such, the Board notes the allowable evidence window for the tinnitus disability commences with its date of claim of December 31, 2018, and the limiting date for evidence submission by the Veteran is December 4, 2020, the day he was notified of the negative decision by the AOJ. New and Relevant Evidence The Veteran's service connection claim for tinnitus was originally denied in July 2019. The Veteran then filed a series of supplemental claims, in August 2019 and July 2020, and the latter was denied in a December 2020 rating decision that is now on appeal before the Board. The Appeals Modernization Act introduced the new standard of new and relevant evidence. The statute defines relevant evidence as "evidence that tends to prove or disprove a matter in issue." Pub. L. No. 115-55 § 2(a). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. Id. New and relevant evidence having been received to warrant the readjudication of the appeal for entitlement to service connection for tinnitus, and to that limited extent only, the claim is granted. The first question to be considered in this appeal is whether the Veteran submitted new evidence after the prior denial for his tinnitus disability that is relevant to the claim for service connection. Here, the Board finds that the Veteran, through his representative, submitted additional medical records for his tinnitus claim, to include two opinions from different medical examiners. These medical and testimonial records were not of record at the time of the original denial and thus may prove or disprove the nexus element of the claim for service connection for a tinnitus disability. As new and relevant evidence has been received and reviewed, the Board finds that readjudication of the Veteran's claim for service connection for a tinnitus disability is warranted. 38 C.F.R. § 3.2501. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Tinnitus Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be 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. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2021). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for tinnitus Evidence and Analysis Tinnitus The Veteran contends that exposure to loud noise during active service caused his current tinnitus disability. The Veteran stated that he served as an Air Force civil engineer technician and noncommissioned officer while on active duty and was exposed to all manner of loud noise, to include the report of rifles, machine guns, and mortars on a regular basis. The Veteran also noted that he was around heavy machines and vehicles that were extremely loud, and that he was rarely afforded hearing protection during active-duty service. The Veteran stated in a lay statement accompanying his notice of disagreement that he has had constant ringing in his ears since active service in both ears, and that it affects his sleep. At the outset, the RO has already identified multiple favorable findings in this appeal, all of which are binding on VA unless refuted with clear and unmistakable evidence. The Veteran is diagnosed with tinnitus that became manifest to a degree of 10 percent or more following service, and also that the Veteran was exposed to hazardous noise in service. 38 C.F.R. § 3.104(c). The Veteran is competent to testify to his own experiences. Further, the United States Court of Appeals for Veterans Claims (Court) has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran's claims to be credible and notes that his statements conform to other lay statements and VA treatment records. Thus, noise exposure and acoustic trauma during service are conceded. The Veteran received a VA examination for his tinnitus in May 2019, and the examiner diagnosed tinnitus having originated in the early 1970s since active service. The tinnitus was noted to be most bothersome when it is quiet around the Veteran or when he is ready to fall asleep. This examiner did not provide an opinion for service connection. The Veteran received a private evaluation from a private audiologist in July 2019 that evaluated the Veteran's hearing and his reported tinnitus. This audiologist noted a diagnosis of tinnitus and also opined that because the Veteran had reported ringing in his ears since active service. This examiner provided a positive opinion for service connection, saying it was more likely than not, more than 50 percent probability, that the Veteran's diagnosed tinnitus was due to active service. The examiner's rationale was that the Veteran's tinnitus had been diagnosed essentially since service, and had continued since then. Also in July 2019, VA had another audiologist examiner address the possibility of service connection based on the evidence from the May 2019 VA audiological examination. This examiner opined in the negative, saying it was less likely than not, less than 50 percent probability, that the Veteran's diagnosed tinnitus was due to or incurred in active service. The examiner's rationale was that since the Veteran's overall hearing was considered normal by VA standards, that it was less likely that any tinnitus could be the result of service, since the presence of hearing loss was correlated with the incidence of tinnitus. The Veteran received a VA examination for his tinnitus claim in January 2020. The examiner noted the Veteran's service as an Air Force civil engineer where he was exposed to heavy equipment noise, power tools, and construction equipment, to include jackhammers and pneumatic compressors on a daily basis. The Veteran also reported he was exposed to aircraft jet engine noise and explosives on a periodic basis. The examiner noted the Veteran reported his tinnitus started near the end of his active service and was recurrent after service. The Veteran himself described it as a constant high ringing in both ears. This examiner made a negative opinion for service Those examinations noted and diagnosed the Veteran's current disability of tinnitus, among other care for the Veteran's hearing loss. Thus, the evidence establishes a current disability of tinnitus, and VA has already made a favorable finding in this regard, as noted previously. The treating VA audiologist of May 2019 also specifically noted the Veteran had constant tinnitus in both ears that began "shortly after [the Veteran] got out like in the early 70s." However, that VA audiologist failed to consider that the Veteran had periods of active duty for training and inactive duty training every year from the end of his extended active duty through to his retirement as an Air Force chief master sergeant in April 1996. The private August 2019 examiner noted that the Veteran's diagnosed tinnitus was at least as likely as not, at least 50 percent probability, related to active service, based on his noise exposure during his active service, for the reasons that were mentioned earlier regarding the bilateral hearing loss analysis. With respect to the final element of nexus, the Veteran has credibly stated that he has experienced tinnitus persistently during and after active duty, to include the periods of active duty for training and inactive duty for training during the Veteran's subsequent service in the reserves until April 1996. This testimony is sufficient to establish a nexus between the Veteran's current tinnitus and the in-service incurrence. This is because for certain chronic disorders, shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2020). Tinnitus caused by acoustic trauma is considered is among the chronic diseases listed under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) applies to this tinnitus claim, and the third service connection element is satisfied. The Board acknowledges a negative rating decision for service connection for tinnitus in May 2019, but also notes that the July 2019 private audiologist provided a positive opinion for service connection. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. The current legal guidance from 38 C.F.R. §§ 3.303(b) and 3.309(a) and Fountain v. McDonald also supports the Board's decision regarding service connection for the Veteran's claimed tinnitus. See Fountain, 27 Vet. App. 258, 263 (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (stating that "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service"). The Board also notes that with the Veteran's periods of active duty for training and inactive duty for training out to April 1996 and the continuity of symptoms since those periods of active duty that would be qualifying under that theory of service connection as well. (CONTINUED ON NEXT PAGE) Resolving all reasonable doubt in favor of the Veteran, his tinnitus cannot be satisfactorily disassociated from service. Thus, giving the Veteran the benefit of the doubt, all elements required to establish service connection for tinnitus have been satisfied, and service connection is warranted. 38 C.F.R. § 3.102 (2021). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.