Citation Nr: 21025305 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-61 039 DATE: April 27, 2021 ORDER New and material evidence sufficient to reopen the claim of entitlement to service connection for tinnitus has been received, and to this limited extent only, the claim is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A September 2011 rating decision denied a claim for a tinnitus disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. Evidence received since the September 2011 rating decision is not cumulative and redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a tinnitus disability. 3. 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. The September 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2007); 38 C.F.R. § § 3.104, 20.302, 20.1103 (2010). 2. New and material evidence sufficient to reopen the claim of service connection for a tinnitus disability has been received, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. 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 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to June 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) in March 2021. A transcript of the hearing is associated with the claims file. The Veteran had previously testified in a Board hearing for the same disability on appeal with a different Veterans Law Judge in August 2019, but because of a technical problem with producing a transcript of that earlier hearing, there was no formal record of that proceeding. Pursuant to 38 C.F.R. § 20.717, the Veteran was then offered the opportunity to testify at another Board hearing, which occurred as noted in March 2021. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). 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) (2020). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). 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). Petition to Reopen In September 2011, VA denied the original claim of entitlement for service connection for a tinnitus disability. The claim was originally denied because the evidence did not show a nexus to service. The RO reviewed the Veteran’s available service treatment records (STRs) and his statements regarding the disabilities. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. § § 3.104, 20.302, 20.1103 (2010). The Veteran sought to reopen this claim in May 2015. The RO reviewed the Veteran’s available service treatment records (STRs), private treatment records, and his statements regarding a tinnitus disability. The RO denied reopening the claim in July 2015. The Veteran filed a notice of disagreement (NOD) in August 2015. VA issued a Statement of the Case (SOC) in September 2017. The Veteran perfected an appeal to the Board in November 2017. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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. 38 C.F.R. § 3.156(a) (2018). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the September 2011 rating decision for the tinnitus service connection claim. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claim Reopened The evidence of record in September 2011 consisted of service records, including personnel and medical records, VA treatment records, and lay statements from the Veteran. The evidence of record at that time established diagnosis of a tinnitus disability pursuant to VA standards, but it did not establish a nexus back to service for that disability. Since the September 2011 rating decision for the tinnitus disability, the Veteran provided additional evidence regarding continuity of his symptoms during testimony before the undersigned VLJ at a March 2021 Board hearing, and additional VA treatment records since September 2011 that go to the establishment of a nexus to service. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran’s hearing loss disability in question, to include the possibility of establishing nexus via continuity of symptomatology, and under the low threshold standard could reasonably trigger the Secretary’s duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the new and material evidence raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a tinnitus disability. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for a tinnitus disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). To that extent only, the claim to reopen for service connection for a tinnitus disability is granted. 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 (2020). 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. Evidence and Analysis – Tinnitus The Veteran contends that exposure to loud noise during active service caused his current tinnitus disability. Specifically, in his April 2010 and April 2011 statements with his claim, the Veteran asserted he served aboard a frigate as a sailor with various duties aboard ship and also as a sonar technician. The Veteran has also stated that his tinnitus had begun during service, because he would notice that he had buzzing sounds of intermittent intensity that became apparent when the environment around him was quiet. Furthermore, the Veteran testified before the undersigned Veterans Law Judge at a March 2021 hearing as to the service aboard a frigate to include a variety of duties exposing him to loud noises, and that his “buzzing” in his ears had originated in service. 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 has received regular audiological care at VA facilities for his hearing. Treatment notes from a March 2010 VA examination indicate a diagnosis of tinnitus by a VA audiologist. That VA treating audiologist noted the Veteran’s reports that the tinnitus is constant and bilateral, and is more noticeable during quiet situations, especially at night. This audiologist noted the Veteran’s statements that he had worked in retail drug stores and later in offices, and thus was not exposed to loud environments after service. The audiologist also noted that while the Veteran’s hearing threshold levels were within normal limits, but that his tinnitus was longstanding and started during his naval service as a sailor aboard a frigate in 1984 to 1988. A second May 2015 VA audiological examination also found tinnitus. This examiner noted the Veteran’s statements that his tinnitus has increased in severity since service and affects his concentration. The examiner also noted that the Veteran had no other ear or related pathologies, and no vertigo. 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. The treating VA audiologist of May 2015 also specifically noted the Veteran had constant tinnitus in both ears that began “shortly after [the Veteran] got out like in early 1987.” With respect to the final element of nexus, the Veteran has credibly stated that he has experienced tinnitus persistently during and after active duty, during testimony with the undersigned VLJ and also over time to different VA audiologists. 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) (2020). 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 two negative rating decisions for service connection for tinnitus in September 2011 and July 2015, but also notes changes in law and regulation since then that negate the reasoning behind that decision. That July 2015 rating decision predates the current legal guidance from 38 C.F.R. §§ 3.303(b) and 3.309(a) (2020) and Fountain v. McDonald, 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”). 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 (2020). 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.