Citation Nr: 21006812 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 20-10 316 DATE: February 5, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A December 2005 rating decision denied service connection for tinnitus. The Veteran did not perfect an appeal of that issue. 2. Evidence received since the December 2005 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1962 to September 1965. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus A December 2005 rating decision denied service connection for tinnitus as the claimed disability was not medically linked to service and there was no evidence that tinnitus manifested to a compensable degree within a year of service. The Veteran did not appeal the decision. As no new and material evidence was received by VA within one year of written notice to the Veteran, the December 2005 decision is final. 38 C.F.R. § 3.156(b). New evidence since the December 2005 decision includes VA examination and treatment records, private clinical documentation, and the transcript of a December 2020 Board hearing. The Board finds that evidence to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for tinnitus when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it suggests that tinnitus is related to active service. That new evidence is also presumed credible for the limited purpose of determining whether it is material. As new and material evidence has been received, the claim of entitlement to service connection for tinnitus is reopened and will be addressed by Remand. REASONS FOR REMAND Entitlement to service connection for tinnitus is remanded. At a June 2019 VA audiology examination, the examiner diagnosed tinnitus. The examiner noted the Veteran's report of exposure to noise from aircraft and headphones while on active duty. The examiner noted that the Veteran reported the onset of tinnitus “ten to fifteen years ago.” The examiner noted that there was no report of tinnitus in service medical records or post-separation treatment records until the time of the claim. The examiner concluded that tinnitus was less likely than not related to hazardous noise exposure in service as the current literature did not support late onset noise-induced tinnitus. The examiner did not provide an opinion for secondary service connection. At the December 2020 Board hearing, the Veteran's accredited representative espoused a new theory of entitlement to service connection. The representative argued that the Veteran's tinnitus could be caused by service-connected neck and back disabilities. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As no medical provider has offered an opinion regarding the theory of secondary service connection, the Board finds that remand is in order for additional VA examination. The matters are REMANDED for the following action: 1. Obtain all pertinent VA and private medical records not yet associated with the record. 2. Schedule the Veteran for a VA audiology examination with an examiner who has not previously examined the Veteran, to obtain an opinion on the etiology of tinnitus. Following a review of the record, to include the Veteran's statements concerning in-service noise exposure, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus had its onset during, or is otherwise related to service, to include established in-service noise exposure. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that tinnitus was caused by service-connected disabilities, to specifically include neck and back disabilities. The examiner should further opine as to whether it is at least as likely as not (50 percent probability or greater) that tinnitus has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disabilities, to include neck and back disabilities. If it is determined that there is another more likely etiology for tinnitus, that should be stated. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. 3. Readjudicate the claim with consideration of all evidence received since the statement of the case. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.