Citation Nr: 21029907 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 20-01 714 DATE: May 17, 2021 ORDER New and material evidence having been submitted, the claim for service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. By a March 2008 rating decision, the Regional Office (RO) denied the Veteran's claim for service connection for tinnitus; he was advised of the RO's decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year, nor was new and material evidence received within a year. 3. Additional evidence received since the RO's subsequent rating decisions in September 2013 and February 2019 is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes, and raises a reasonable possibility of substantiating the claim. 4. The record evidence is in relative equipoise as to whether the Veteran's tinnitus is related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the Veteran's claim for service connection for tinnitus. 38 U.S.C. §§ 5107, 5108 (West 2012); 38 C.F.R. §§ 3.102, 3.156 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§1131, 5103, 5103A, 5107; 38 C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1964 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a VA Regional Office (RO). The February 2019 rating decision declined reopening the tinnitus claim finding no new and material evidence had been submitted, but subsequently, the RO reopened the claim and denied it on the merits in an August 2019 Statement of the Case. The RO's decision to reopen the claim is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran testified before the undersigned in a virtual Board hearing in February 2021 and the transcript is of record. Of note, the record was left open for sixty days after the hearing for the Veteran or his representative to submit additional evidence. At the time of this decision, the Veteran's representative has submitted additional evidence within the sixty-day prescribed window and waived AOJ consideration pursuant to 20.1305(c). As such, the Board has considered this additional evidence in the preceding decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence New and material evidence having been submitted, the claim for service connection for tinnitus is reopened. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). In the present case, the RO by a decision entered in March 2008, denied the Veteran's original claim for service connection for tinnitus on the grounds that the condition was not "due to your military service". Specifically, the RO denied because the February 2008 VA examiner opined that the Veteran's "nonservice related head injuries, construction noise exposure and presbycusis and the predominant factors in your tinnitus". The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Subsequently, the Veteran filed to reopen his claim for tinnitus in June 2013 and again in December 2018. The RO denied his request in September 2013 and February 2019 respectfully. The RO's decision in September 2013 also became final after no appeal was initiated within one year nor any new and material evidence was received. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In the recent rating decision from February 2019, the RO found only VA medical center records were added since the last RO decision in 2013 and they were not new and material to his claim of service connection for tinnitus therefore, the denial of service connection for tinnitus was continued. After the February 2019 denial, the Veteran filed a timely Notice of Disagreement (NOD) and requested a review by a Decision Review Officer. Upon further review, the RO in August 2019, confirmed denial of service connection for tinnitus after reopening his claim on new and material evidence grounds. Since the February 2019 RO decision, the Veteran has contended that if his tinnitus is considered a preexisting condition under VA regulations, then this condition was aggravated by his active duty service. This service connection theory was asserted for the first time in a February 2021 hearing before the undersigned. In support of his claims, the Veteran has submitted a medical opinion along with his own sworn testimony. This evidence has never been considered by the RO decision makers during any of the previous rating decisions. The claim now before the Board relates to service connection and the claims file has been supplemented with evidence of a possible link between his currently diagnosed tinnitus and his military service. Therefore, the Board finds the added evidence to be both new and material in that it relates to an unestablished fact associated with an element of service connection, which has not been previously considered by VA decision-makers. Accordingly, the claim for tinnitus is reopened. Service Connection In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, this requires (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). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, such as tinnitus, compensable to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Tinnitus has been defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (32d ed. 2012). In Charles v. Principi, 16 Vet. App. 370, 374-375(2002), the Court held tinnitus is a condition which is capable of lay observation. For purposes of establishing service connection, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And in that circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, before service the Veteran suffered a hit to the head while playing baseball during college in 1964. The Veteran himself believes that the onset of his tinnitus began at this time. See February 2021 Hearing P. 5-6. The Veteran's service treatment records (STRs) do not reflect any injuries, complaints, symptoms, treatment, or diagnosis of tinnitus. Importantly, the Veteran's entrance examination from January 1965 noted that the Veteran was in "excellent" present health but did note a history of being hit on the head with a baseball prior to service. The examination report further noted that the Veteran's hearing was checked at Walker Air Force Base and his hearing "passed" and did not confirm any hearing loss. The Veteran, of his own accord, testified before the undersigned in February 2021 that his tinnitus symptoms were not "eventful" prior to service and so he never told the examiner nor was he ever asked. See February 2021 Hearing P. 6. In addition, there are reports of high frequency hearing loss being noted in STRs from October 1968 and inflammatory disease of the middle ear in December 1968. Post-service, the Veteran worked as a salesman from 1969 to 1986 in the insurance, real estate, and investment business. Afterwards he worked in the construction business from 1968 until he retired in 2007. The Veteran was afforded a VA examination for tinnitus in January 2008 in which the Veteran reported tinnitus in and since service. During the examination, the Veteran reported the onset of tinnitus symptoms to be prior to service as the result of an injury to the head sustained by a baseball in 1964. The examiner opined "[it is less likely than not [that Veteran's] tinnitus is a result from being a navigator while serving his time in the United States Air force due to the reported onset & conditions of which it started" The Veteran was afforded another VA examination in February 2008. At which time, the examiner confirmed that the Veteran has a current diagnosis of bilateral tinnitus. The examiner noted that the Veteran's "C130 cockpit noise exposure has contributed significantly to both his hearing loss and to his tinnitus...". However, the examiner went on to opine that "the head injury, construction noise exposure, and presbycusis are the predominant factors in his hearing loss and tinnitus". Another VA examination was conducted in September 2013. The Veteran again reported tinnitus symptoms of "ringing in the ears" that affects his sleep, mood, and occasionally makes communication difficult "depending on the pitch of the person's voice. The Veteran further reported the need to play music "all the time" to mask his tinnitus symptoms. Ultimately, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner explained that the Veteran's "tinnitus...started in May 1964 which was more than 6 months before the Veteran entered military service" and therefore "this does not support the claim of service connection...". A September 2018 VA examination was also conducted however, the Veteran did not report recurrent tinnitus. However, the Board finds this to be an outlier as all prior and contemporaneous medical record evidence indicates the presence of tinnitus with a diagnosis in 2008. The Veteran was afforded another VA examination for his tinnitus in August 2019. Again, the examiner noted the history of the Veteran's tinnitus including the reported onset prior to service. Ultimately, the examiner opined that his tinnitus was not caused, or a result of military noise exposure based on the Veteran's reports of the onset of tinnitus symptoms prior to service. Specifically, tinnitus beginning in 1964 after being hit "behind the left ear in 1964 by a baseball". In November 2019, the Veteran was afforded a final VA examination for tinnitus. As with all prior examinations, the Veteran reported the onset of recurrent tinnitus prior to service in 1964. The Veteran also reported that he experiences constant tinnitus in both ears. Here, the examiner once more opined that "his tinnitus was most likely associated with a head trauma prior to entering service". During a February 2021 hearing, the Veteran testified to flying over 2,000 hours in a C-130 aircraft as a navigator. He also reported facing enemy fire flying resupply missions to Khe Sanh Marine Corps base in Vietnam and while flying night missions in Laos. The Veteran further testified to the onset of tinnitus prior to service as noted above as well as experiencing worsening symptoms during service. Specifically, he described how very loud C-130 aircraft engines are "four turbo prop engines" and how after missions he could not hear till the afternoon of the next day due to the extreme engine noise and enemy fire he experienced. The Veteran also testified to experiencing tinnitus since service and currently uses hearing aids to assist with masking his tinnitus. Without the use of the hearing aids, the Veteran reported that tinnitus "gets louder" and "bothers me". In April 2021, the Veteran submitted a medical opinion from a VA audiologist, Dr. P.S. It was noted by Dr. P.S. that the Veteran believes his tinnitus began prior to service after being struck in the head with a baseball. It was further noted that the Veteran flew in C-130 aircraft during active duty service. Dr. P.S. then opined that "it is as likely as not that [the Veteran] sustained increased tinnitus from his activities in the US Air Force". Entitlement to service connection for tinnitus is granted. The Veteran contends that his tinnitus is caused by or alternatively, was aggravated by his active duty exposure to hazardous noise. The Veteran has reported in-service noise exposure, including C-130 engine noise during over 2,000 hours of flight time and exposure to enemy gunfire during numerous missions in Vietnam and Laos. Based on the foregoing, the Board finds that service connection for tinnitus is warranted. The Board notes that the Veteran has a current diagnosis of tinnitus and that there is a high probability that he was exposed to hazardous noise during service. The Veteran's statements of exposure to hazardous noise are supported by his service department records including his DD-214 which notes that his military occupational specialty was navigator in the United States Air Force. His DD-214 also confirms his Vietnam War service. However, before the Board may consider whether there is a nexus between the Veteran's tinnitus and service, the initial question must be whether or not the Veteran's tinnitus preexisted service. To that effect, the Veteran's entrance examination does not contain a "note" of a pre-service condition of tinnitus thus, the presumption of soundness attaches. Therefore, to rebut the presumption of soundness upon entry of service, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the veteran's service. Here, the Veteran's reports of a pre-service injury resulting in the onset of tinnitus are consistent throughout the entire pendency of the claim. The Veteran has reported the onset of symptoms to treating physicians, VA examiners, and testified before the undersigned that his tinnitus began prior to service. Therefore, there is clear and unmistakable evidence that his tinnitus began prior to service. However, as to the second inquiry of whether his tinnitus was not aggravated by or during service, such clear and unmistakable evidence does not exist nor is there any evidence that the increase in disability was due to the natural progress of the disease. Specifically, the Veteran has testified that his tinnitus and overall hearing worsened during service to reflect the current symptoms of constant ringing in the ears. Especially after flying numerous missions in a C-130 aircraft and coming under enemy fire. Prior to service, the Veteran's symptoms were so inconsequential that neither he nor the entrance examiner in January 1965 reported any tinnitus symptoms. In light of the Veteran's combat service, the Board has also considered the Veteran's lay statements in the purview of that service. See 38 U.S.C. § 1154(b) (indicating that where a veteran who has engaged in combat with the enemy in active service... the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran). Accordingly, the Board finds that the Veteran's competent lay accounts of his duties in service and exposure to aircraft noise and gunfire consistent with the circumstances, conditions, and hardships of his service and are considered credible and probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), 38 U.S.C. § 1154(b). Additionally, the Veteran submitted a medical opinion from a VA audiologist, Dr. P.S., who opined that "it is as likely as not that [the Veteran] sustained increased tinnitus from his activities in the US Air Force". See Dyment v. West, 13 Vet. App. 141 (1999) (holding medical examiner's word choice is not error where opinion is unambiguous). Therefore, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus symptoms were aggravated during service and has experienced them ever since. In other words, there is evidence both supporting and going against the claim. Weighing in favor of the claim are the Veteran's competent and credible reports of worsening bilateral tinnitus during and since service coupled with consideration given to the Veteran for his combat service. Also, the Veteran's post service employment from 1969 to 1986 was in businesses where exposure to hazardous noise was nonexistent. The Veteran then began construction work in which overhead ear protection was used throughout until retirement in 2007. The Veteran has also testified to not participating in any leisure activities in which exposure to hazardous noise is common, i.e. he does not hunt and only participated in sports and running. See February 2021 Hearing P. 11-12. Weighing against the claim are the VA examinations of record which all provided a negative nexus opinion based on the reported onset of tinnitus prior to service. However, the Board finds that these VA medical opinions to be of little probative value. The Veteran is competent to describe being exposed to loud noise during and after active service and is competent to describe observable symptoms such as ringing in the ears. The Veteran's lay statements regarding exposure to loud noises during service are found to be credible to the extent that they have been internally consistent, are consistent with the circumstances of his service, and are provided by a combat veteran (as discussed above). The Board finds the VA examinations and subsequent medical opinions of record to be overly reliant on the Veteran's reported onset of tinnitus symptoms prior to service without ever discussing any possible worsening or aggravation of those symptoms. With the exception of the February 2008 examiner who actually opined that the Veteran's "C130 cockpit noise exposure [] contributed significantly to both his hearing loss and to his tinnitus..." however went on provide a negative nexus opinion based primarily on the pre-service head injury. Thus, the VA examiners' rationales seem devoid of proper consideration of the Veteran's Vietnam service and related noise exposure as it pertains to aggravation. Having reviewed the record evidence, the Board finds that it is in relative equipoise as to whether the Veteran's tinnitus was aggravated in and is attributable to active service. The Veteran has provided credible evidence of in-service acoustic trauma. He has stated that he experienced symptoms during service. And he has endorsed symptoms of tinnitus since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The evidence tends to show that the Veteran's current tinnitus is at least as likely as not aggravated by the acoustic trauma he suffered in service. Although a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of the lay Veteran to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of the symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (noting that "any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion"). The Board concludes that the Veteran's symptoms of tinnitus were aggravated by service, have been continuous since service, and meet the criteria for presumptive service connection for tinnitus based on "continuous" post-service symptoms. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. See 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.