Citation Nr: 21028868 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-21 008 DATE: May 12, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A September 2010 rating decision denied entitlement to service connection for tinnitus; the Veteran did not appeal the denial in a timely manner, and no new and material evidence was submitted within the appeal period. 2. Evidence received since the final September 2010 rating decision is new, relates to an unsubstantiated matter necessary to substantiate the claim of tinnitus, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has experienced continuity of symptomatology of tinnitus since his separation from service. CONCLUSIONS OF LAW 1. The September 2010 rating decision, which denied the claim of entitlement to service connection for tinnitus, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim of service connection for tinnitus has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 20.1105. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1965 to October 1967. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has not yet been added to the file, as this decision is being processed under the Board's "One Touch" hearing program. A copy of this transcript will be added to the Veteran's claims file in the ordinary course of business. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, 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). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). A September 2010 rating decision denied the claim for tinnitus based on an absence of evidence showing that tinnitus began in or was caused by military service. Notice of the determination was issued the same month. The Veteran did not appeal the denial of the claim, and no new and material evidence was received within the appeal period. Thus, the September 2010 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. New evidence added to the record since the September 2010 rating decision, includes the Veteran's testimony that he began to have tinnitus, or ringing in his ears, in service, and that tinnitus continued after service. He provided this evidence of in-service occurrence in more detail than in his June 2010 statement, for example. Also, a January 2015 private ear conditions disability benefits questionnaire (DBQ) with corresponding January 2015 private medical records, as well as updated VA treatment records. Specifically, the January 2015 private ear conditions DBQ noted, in part, the Veteran had a diagnosis of noise related sensorineural hearing loss and a diagnosis of tinnitus, which is relevant as it tends to support the Veteran's contention that his tinnitus is due to in-service noise exposure. A January 2015 private medical record also documented, in part, the Veteran had very long term tinnitus, which also tends to supports his contention his tinnitus onset during his service. Additionally, the Veteran's VA treatment records, including dated in August 2014 and September 2017, also generally reflect he had tinnitus of a long standing nature. Thus, this additional lay and medical evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim for service connection for tinnitus is reopened. The appeal, to this extent, is granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to service connection for tinnitus As discussed above, the Board has reopened the claim for service connection for tinnitus based on new and material evidence. In this regard, the Agency of Original Jurisdiction (AOJ) reopened the claim for tinnitus, as documented in the February 2018 Statement of the Case (SOC), and also adjudicated the claim in the first instance. Moreover, in light of grant of the claim in full herein, the Veteran is not prejudiced by the Board's consideration of this issue in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as tinnitus, as organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that service connection for tinnitus is warranted due to in-service noise exposure. Specifically, in a June 2010 statement, the Veteran reported ringing in his ears after firing twin 40 mm guns and thought it was a normal thing that happened. In a statement, received by VA in October 2014, the Veteran noted, while in Vietnam from 1966 to 1967, his military occupational specialty (MOS) was as an artillery gunner for a 40 mm gun and hearing protection was not provided during his time in combat operations. He further reported, that since leaving the service, he had had ringing in both ears, and that post service, he worked in a factory but was required to wear hearing protection by his employer. In a May 2015 statement, the Veteran also reported, during his service in Vietnam, he was a gunner on a track vehicle with twin 40 mm guns and he first started to notice this condition while on active duty in Vietnam. The Board finds the Veteran has a current disability of tinnitus. Specifically, in an April 2010 VA examination report and in January 2015 private ear conditions DBQ, the Veteran reported tinnitus, and further, during the pendency of this claim, he also reported the existence of tinnitus. Moreover, tinnitus is the type of disability which a lay person is competent to identify. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the current disability element for tinnitus is established by the evidence. The Veteran's service treatment records do not reference noise exposure or tinnitus. However, as discussed above, the Veteran has reported in-service noise exposure due to his MOS as a gunner while stationed in Vietnam. The Veteran's reports are consistent with his service records which document that his MOS was a gunner and that he served in the Republic of Vietnam from October 1966 to October 1967. Thus, the Veteran's contentions of in-service noise exposure during service in the Republic of Vietnam is deemed consistent with the circumstances and conditions of his service, and thus, is established by the evidence, notwithstanding that there is no official record of such incurrence during service. 38 U.S.C. § 1154 (b). As to an etiological relationship to service, the April 2010 VA examiner found it was less likely the Veteran incurred tinnitus from exposure to noise in service as there was no change in his hearing from the time he entered active service until he was released. The April 2010 VA examiner also noted the Veteran did not report a loss of hearing on his Report of Medical History at his release from active service, that he had been exposed to hazardous noise after release from active service, and he could not remember the date of onset of the tinnitus. The April 2010 VA examiner's opinion tend to weigh against the claim; however, in a statement provided with an April 2018 substantive appeal, the Veteran reported the examiner's questions about the ringing in his ears confused him as he had had not filed a claim for that and at the time did not understanding what the term tinnitus was or how it was related to his hearing loss and acoustic trauma suffered in service. He further reported the April 2010 VA examiner mentioned he worked as a welder for 35 years but that only a possible six months of that time period was without hearing protection, and thus the examiner's finding that he was exposed to hazardous noise after release from active service was provided out of context. Moreover, as discussed above, also of record is a January 2015 private ear conditions DBQ, which noted, in part, the Veteran had a diagnosis of noise related sensorineural hearing loss and a diagnosis of tinnitus, and a corresponding January 2015 private medical record, which also documented, in part, the Veteran had very long term tinnitus. Additionally, the Veteran's VA treatment records, including dated in August 2014 and September 2017, also generally reflect he had tinnitus of a long standing nature, albeit one record noted his tinnitus onset in 1970 which was several years post service. Nonetheless, these medical records generally tend to reflect the Veteran's tinnitus was related to noise exposure and was of a long standing nature, and thus, are generally consistent with the Veteran's contentions his tinnitus onset following noise exposure during his service. Furthermore, the April 2010 VA opinion regarding the Veteran's tinnitus relied upon the Veteran's report that he was unsure of when his tinnitus onset; however, in other statements the Veteran reported his tinnitus onset during his active service. Specifically, as discussed above, in June 2010, October 2014, and May 2015 statements, the Veteran generally reported he experienced tinnitus during and since service. During his May 2021 hearing, he provided more detailed testimony regarding the onset or tinnitus and service and symptoms since that time. In this regard, Veteran is competent to testify as to observable symptoms such as ringing in the ears, because such symptoms are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's June 2010, October 2014, and May 2015 statements and May 2021 testimony regarding the onset of his symptoms pertaining to his tinnitus to be credible and they are accorded significant evidentiary weight. The evidence shows that the Veteran presently has tinnitus and there is competent and credible lay evidence of tinnitus since service. Thus, resolving doubt in the Veteran's favor, the Board finds the Veteran's tinnitus is in fact related to service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for tinnitus is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.